BSC- Applications for the appointment of a Guardian and an Administrator

[2013] TASGAB 7

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

BSC- Applications for the appointment of a Guardian and an Administrator

BSC (Guardianship and Administration) [2013] TASGAB 7

REASONS FOR DECISION for the appointment of a guardian

Rodney Lester (Chair)
Sue Hill (Member)
Philippa Whyte (Member)

Date of hearing: 12^th April 2013

Guardianship – transition from care and protection order to guardianship – least restrictive alternative – best interests – responsibility of Public Guardian

Guardianship and Administration Act 1995 s.3(1), 15, 21, 20(1)(b)(c), 51(1)(b)(c), 20(2)(3)

1. The hearing was in respect of BSC, an 18 year old man who at the time of the hearing was living in transitional accommodation provided through St Michaels Association. BSC had turned 18 two days prior to the hearing, and up until that stage had been subject to a Care and Protection Order. BSC has had no contact with his family for the great majority of his life. The application for Guardianship and Administration was made by Adrianne Purcell, BSC’s Child Protection Case Manager. The applicant proposed that the Public Guardian be appointed Guardian and the Public Trustee be appointed Administrator. 

2. At the commencement of the hearing the Chairman outlined the processes that the Board would follow, and explained the criteria that needed to be established for appointment of either a Guardian or Administrator. The information and reports available to the Board were also detailed.

3. The hearing was held at the Magistrates Court in Launceston on Friday, April 12^th, 2013. It was attended by BSC, David Symons, (Public Trustee), Pat Clarke, (Public Guardian), John Gilpin, Ebi and Rod Campbell, (all from St Michaels Association), Menno Van Der Molen, (Baptcare) and Tim Fowler, (Child Protection Services). The applicant was unwell and did not attend.

Disability – sections 3(1), 20(1)(b) and 51(1)(b)

1. The Board had a Health Care Professionals Report from Dr A.J. Dunstan, and a number of assessments from St Giles. It was clear that BSC has a disability as defined in section 3(1) of the Guardianship and Administration Act 1995. Dr Dunstan’s report identifies ‘Severe intellectual disability, congenital cerebellar hypoplasia and autism.’ Other reports indicate ataxic cerebral palsy and epilepsy as further disabilities that BSC suffers from.

1. There were no dissenting views when the Chairman indicated to the hearing that the Board, given the bulk of evidence available to it, was comfortable to proceed upon the basis that BSC had a disability.

Incapacity – sections 20(1)(b) and 51(1)(b)

1. Dr Dunstan stated in the Health Care Professionals Report when questioned on the effect of the disability on BSC’s circumstances, ‘No effective language, no self-care ability. Totally dependent on all aspects of daily living …’ He further indicated that BSC was unable to make reasonable decisions about accommodation, had no understanding about medical treatment, and was unable to make reasonable decisions about any other lifestyle issues. His report finished with the statement ‘BSC will remain permanently dependent on guardianship.’

1. There was no evidence introduced that challenged the proposition that BSC lacked capacity in almost all areas, and that this incapacity was a direct result of his disability.

1. The Board was firmly of the view that the only reasonable conclusion was that BSC had a disability, and as a result of this disability lacked the capacity to make reasonable decisions in relation to matters concerning his estate, his accommodation, his health care and his general circumstances. The Chairman informed the hearing that the Board would proceed on that basis, and there was no challenge to that position.

Need – sections 20(1)(c) and 51(1)(c)

1. BSC’s circumstances necessitated management and protection of his assets and income by an independent party. The appointment of an administrator was uncontentious, therefore this statement of reasons will not detail the reasons for that appointment but, rather, will concentrate on the reasons for appointment of a guardian. There was substantial evidence to suggest that during the transition phase that BSC had just entered, which would ultimately see him move from being cared for by foster parents, through his current stay at St Michaels, to ultimately some hopefully permanent supported place in the community, there would be a large number of very important decisions that would need to be taken for BSC. BSC’s advocate, Dominique Vittori, wrote ‘BSC could be at risk of being directed to areas of accommodation, daily living, medical care, education, entertainment that may not be in his best interest or wishes. … without a significant other or a guardian BSC could be at risk to only receive minimal service suited to what is available and not what he needs.’ John Gilpin spoke at some length about the issues facing BSC, and the decisions that were going to need to be made in the short term. There is expected to be significant decisions necessary about accommodation, and also decisions necessary to assist BSC in maximising outcomes under the soon to be introduced National Disability Insurance Scheme, since renamed Disability Care. Rod Campbell expanded on BSC’s medical needs, stating that BSC ‘had a complex medical history and complex needs …’ He was firmly of the view that BSC needed a guardian to consent to health care, especially due to the fact that BSC’s circumstances meant that there was no obvious person responsible.

1. It was clear that it was going to be necessary to appoint a guardian for BSC. There were significant decisions to be made for BSC in the short to medium term, a number of which could have a significant impact on his long term quality of life. BSC appeared to have a strong team supporting him, and doing all they could to prepare him for the challenges ahead. The whole endeavour of moving BSC from foster care, through St Giles and St Michaels, and ultimately into some form of group home, now required the authority and decision making power that only a guardian could provide. Just as importantly BSC required the protection, advocacy, encouragement and support that a guardian should provide whilst exercising their authority. The principal issue facing the Board was if BSC’s best interest could be effectively served with a limited Guardianship order, or was a full order more appropriate. There was a strong preference from those involved in BSC’s care and transition for a full order, due to the complexity of his needs and the uncertainty and opportunity surrounding the implementation of Disability Care. Ultimately the Board was persuaded that to limit the order would mean the guardian had insufficient powers to meet BSC’s needs. The Public Guardian’s support at the hearing for a full order was an important factor in the Board’s ultimate decision.

1. Whilst it was not possible at the hearing to determine BSC’s wishes it was noted that the support he was receiving from St Michaels was leading to noticeable improvements in his functioning. He accepted this and other support readily and there was no indication given to the Board that he would not accept the support of a guardian. As always there is a judgement to be made about the competing requirements under sections 20(2) and 20(3) of the Act where the least restrictive course of action needs to be followed which results in the best interests of the person being promoted. The Board’s view was that in this instance limiting of the order could significantly damage BSC’s best interests whilst only having a marginal impact upon his freedom of decision and action. It also noted that the Public Guardian would have a responsibility under section 6 of the Act to exercise their powers in a manner that promoted BSC’s ability to participate in decisions about his care.

Appropriateness of appointee - sections 21 and 15

1. There was no proposition that any person other than the Public Guardian should act as BSC’s Guardian, if it were decided that a Guardian should be appointed. The Public Guardian has statutory functions and powers under section 15 of the Guardianship and Administration Act 1995, and is an appropriate appointment.

Directions:

1. Whilst the Board made no specific directions in relation to the order it did discuss with the Public Guardian the possibility of an early review being sought if BSC’s circumstances changed and the Public Guardian changed her view that a full order was appropriate for BSC’s circumstances. This was considered a possibility if BSC’s accommodation needs were met and settled.

Time for review:

1. As discussed above the possibility of an early review was canvassed but it was decided that BSC’s interests were best served if this were left to the judgement of the Public Guardian.

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 estate, and his person and circumstances; and

• is in need of a guardian and an administrator;

THE BOARD ORDERS

1. That The Public Trustee be appointed 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 Public Guardian be appointed as the represented person’s guardian.

4. That the powers and duties of the guardian be those conferred by Division 3 of Part 4 of the Guardianship and Administration Act 1995.

5. That the order remains in effect to 11 April 2016.

RODNEY LESTER             SUE HILL  Philippa Whyte

CHAIRMEMBER  MEMBER

Date of Decision