BSH (Review Guardianship and Administration)
[2018] TASGAB 33
•20 November 2018
GUARDIANSHIP AND ADMINISTRATION BOARD
BSH (Review Guardianship and Administration) [2018] TASGAB 33
STATEMENT OF REASONS
Board: President Rowena Holder
Carolyn Wallace
Kate Brown
Date of order: 20 November 2018
Review of Guardianship and Administration orders – need for accommodation – healthcare and medical powers – eligibility for appointment as Guardian and Administrator – family conflict and preserving family relationships – conflict of interest
Guardianship and Administration Act 1995; Aged Care Act 1997
Holt v Protective Commissioner (1993) 31 NSWLR 227; FHT (Administration) [2007] TASGAB 7
BACKGROUND
On 20 November 2018, the Guardianship and Administration Board (the Board) heard an Application for Review of Orders, being an Administration Order and a Guardianship Order made in respect of BSH, the Represented Person. The Application dated 27 April 2018 was made by KI.
The Guardianship and Administration Orders were made by the Board on 13 October 2016. The Public Guardian was appointed for 3 years, until 12 October 2019 as BSH’s Guardian with limited powers to consent to any healthcare and treatment and to determine where BSH is to live permanently or temporarily.
BH was initially appointed as BSH’s Administrator for 3 years, until the 12 October 2019. An Application for a Review of the Administration Order made by KI was heard and determined by the Board on 22 March 2017 resulting in a variation of the Administration Order. The Public Trustee was appointed as BSH’s Administrator to 12 October 2019.
The Application for Review of Orders dated 27 April 2018 was adjourned by the Board on the 15 June 2018 and then on 10 September 2018 to enable a medical report from an old age psychiatrist or geriatrician, to be obtained.
The Application for Review of Orders heard on 20 November 2018 required the Board to determine whether the administration and guardianship orders ought be varied, continued or otherwise allowed to lapse.[1]
[1] Section 68 of Guardianship and Administration Act 1995
The Board continued the Guardianship and Administration Orders but varied the term of the Orders to 19 November 2021.
A request for Statement of Reasons has been made by BSH’s solicitor.
THE HEARING
The following persons attended the hearing on the 20 November 2018:
·BSH, the Represented Person;
·KI, the Applicant and fiancée of BSH
·Mr David Cocker, solicitor for BSH, Legal Aid Commission of Tasmania;
·Mr Tim Levis, Public Trustee of Tasmania
·Ms Fiona Whitton, Public Trustee of Tasmania
·Ms Elizabeth Love, Office of the Public Guardian
·BH, daughter of BSH
·CW, daughter of BSH
·KC, sister of BSH
·Mr Samuel Shinnick, Office of the Public Guardian, as an observer.
The Board had the following documents before it:
· Administration Order made by the Board dated 22 March 2017
· Guardianship Order made by the Board dated 22 March 2017
· Adjournment Order made by the Board dated 15 June 2018
· Adjournment Order made by the Board dated 19 September 2018
· Application for Review of Order dated 27 April 2018;
· Health Care Professional Report from Dr Peter Hamer, Psychologist dated 20 April 2018;
· Health Care Professional Report from Dr Keith Miller dated 24 January 2017
· MyAgedCare document dated 24 August 2016 ;
· Copy letter to Dr Hamer from the Acting Registrar of the Board dated 8 May 2018
· Dr Hamer’s response to the Acting Registrar’s letter dated 15 May 2018
· Emailed letter from Dr Keith Miller dated 14 June 2018
· Submission from KI dated 14 June 2018
· Ombudsman’s Report dated 8 June 2018
· Report from the Public Trustee, Mr Edward Kempa dated 13 June 2018
· Letter to Dr David Dunbabin and Dr Miller from Guardian, Ms Elizabeth Love dated 15 June 2018
· Submission from KI dated 6 August 2018
· Submission from Dr David Cocker dated 9 August 2018
· Financial Statement from the Public Trustee dated 14 November 2018
· Health Care Professional Report from Dr Alison Cleary, Geriatrician dated 18 August 2016
· Health Care Professional Report from Dr Sigrid Denehey dated 6 August 2014
· Health Care Professional Report from Dr Anelisa de Souza 16 August 2016
· Financial Statement from the Public Trustee dated 14 November 2018
· Medical report from Dr Dunbabin dated 25 September 2018
REQUIREMENTS OF THE GUARDIANSHIP AND ADMINISTRATION ACT 1995
When the Board determines an application for review of an administration order it needs to be satisfied of the matters in s 51 of the Guardianship and Administration Act 1995 (‘the Act’) and of the matters in s 20 of the Act in respect of a review of a guardianship order. They are, that the represented person, in this case BSH:
a.is a person with a disability, and
b.is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his or her estate; and for guardianship, in respect of his person and circumstances.
c.is in need of an administrator/guardian.
The Board must also balance the principles in s 6 of the Act, which are:
a. the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
b. the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
c. 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 REPRESENTED PERSON A PERSON WITH A DISABILITY?
The Board had before it a report from Dr Dunbabin, Consultant Physician and Specialist in the Health of the Elderly dated 25 September 2018. Dr Dunbabin, met and reviewed BSH on 25 September 2018. Dr Dunbabin reported that BSH has a disability as defined in s 3 of the Act. The Board also had before it other medical reports which indicated BSH has a disability, though there was differing opinion as to diagnosis. This evidence of Dr Dunbabin was not disputed at the hearing. The Board accepts the evidence of Dr Dunbabin and is satisfied BSH is a person with a disability within the meaning of the Act.
IS THE REPRESENTED PERSON INCAPABLE BY REASON OF THE DISABILITY OF MAKING REASONABLE JUDGMENTS?
Dr Dunbabin reports:
The disability currently renders him unable to make reasonable judgments in respect of matters relating to personal lifestyle circumstances.
The disability renders BSH unable to make reasonable judgments about management of his financial affairs.This evidence was not disputed at hearing. The Board is satisfied BSH is incapable of making reasonable judgements in respect of matters relating to all or any part of his estate and also in respect of his person and circumstances.
IS THE REPRESENTED PERSON IN NEED OF AN ADMINISTRATOR AND/OR GUARDIAN?
The Guardian, Ms Love gave evidence that there was a need for a guardian to make decisions about health care and medical treatment as ‘continuity of care’ has been an issue. Ms Love indicated that BSH has had three changes in General Practitioner since the Order commenced in 2016. At Hearing KI indicated that there had been a recent change in General Practitioner because BSH had had three admissions to hospital this year which KI considered were as a result of the medication he was on. Ms Love indicated that there has been communication breakdown whereby KI has not informed the Guardian of health care issues such as recent admissions to hospital or changes to who is BSH’s treating general practitioner. Ms Love felt there was the potential of a knee jerk reaction to healthcare and medical treatment decisions being made if the Guardianship Order was removed.
Ms Love gave evidence that there was a need for a Guardian to determine decisions as to BSH’s accommodation. The Board heard evidence that BSH was unhappy living at his current accommodation, which is an aged care facility. BSH’s wish is to live with KI, and their daughter. Options are being considered by the Guardian as to whether this is a viable option with support from services. Ms Love indicated that a report had been obtained from an Occupational Therapist which outlined modifications would be required to the house owned by KI, if BSH was to reside there. KI indicated she had obtained a building quote for the modifications which was $20,000.00. Ms Love stated that a trial period could occur without giving up BSH’s current accommodation, as the Aged Care Act 1997[2] allows an absence of up to 52 days of social leave. Ms Love stated that such a move is fraught with uncertainties, as there are financial implications associated with a move and if the change in accommodation was not successful then further accommodation would need to be sourced.
[2] Aged Care Act 1997 - Part 3.1Residential care subsidies; Division 42.2 leave from residential care services. The Care fees, charges and payments information on the Department of Health Ageing and Aged Care page states a residential aged care resident can take up to 52 days social leave per annum.
There was no opposition by anyone present at the hearing as to the need for a limited guardianship order.
Mr Levis on behalf of the Administrator, the Public Trustee of Tasmania reported that in his view there was an ongoing need for an Administration Order. Mr Levis indicated that based on the medical evidence before the Board an Administrator was required to manage BSH’s financial estate. Mr Levis stated that the size of the estate warranted prudence and that there ‘were multiple complexities as to the estate.’ Mr Levis reported that the Public Trustee were dealing with Centrelink concerning the fee assessments of BSH’s two admissions to aged care facilities, and wanting those revised. Further, Mr Levis stated that BSH’s financial interests would need to be considered and protected if modifications were done to KI’s house to accommodate BSH residing there. Mr Levis stated that a constructive trust or deed of arrangement would need to be considered. Mr Levis also flagged that BSH’s late wife’s estate may have created a life estate and consideration would need to be given that if the trust is not extinguished whether that has any bearing on future accommodation decisions. Mr Levis indicated that this was a matter the Public Trustee had just become aware of and was not in a position to provide further clarity on it.
The need for an administration order was not challenged at hearing. The Board is satisfied BSH needs an Administrator and a Guardian with limited powers pertaining to accommodation and healthcare and medical treatment decisions.
WHO IS TO BE APPOINTED?
The disputed issue at the hearing was who should be appointed as BSH’s Administrator and Guardian. KI wished to be considered for appointment to both roles. The other option before the Board was that the current incumbents, being the Public Trustee as Administrator and the Public Guardian as Guardian.
APPOINTMENT OF ADMINISTRATOR
Section 54 of the Act provides:
(1) The Board may appoint as an administrator of the estate of a proposed represented person –
(a) The Public Trustee; or
(b) the Public Guardian; or
(c) a trustee company within the meaning of the Trustee Companies Act 1953; or
(d) any other 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.(2) 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.When considering who should be appointed administrator, the appointment of one of the three statutory agencies lies as a default option for the Board, meaning that the Board does not need to assess the eligibility of the three statutory agencies nor seek their consent to appointment.
Through his solicitor BSH expressed his wish that he would like KI to be appointed his administrator.
KI stated that it had been difficult dealing with the Public Trustee. KI also expressed a lack of confidence in the Public Trustee and was concerned that BSH’s asset portfolio had been depleted since they were appointed Administrator and may be depleted further.
Mr Levis responded by stating the Public Trustee was qualified and experienced in administration and indicated that in his opinion the relationship had not broken down irretrievably. He indicated the Public Trustee would carry on in good faith if reappointed.
BH eloquently acknowledged the strong relationship between BSH and KI but expressed concern that she did not believe KI had the depth of knowledge needed in these circumstances to be administrator and conceded that neither did she. BH advocated for the appointment of the Public Trustee on the basis that the Public Trustee had the knowledge and expertise to perform the role, and were impartial. BH indicated that she did not want rifts and stresses in relationships evidenced before between BSH and KI to impact on financial decisions that need to be made for BSH. KC and CW were supportive of the appointment of the Public Trustee.
From the evidence at hearing and in documentation before the Board, the Board is also mindful that strained relationships exist between KI and BSH’s daughters and sister.
The Board took into account the complexity of the administration, as it currently stands, including resolving matters of funding with Centrelink; the potential need for a constructive trust or deed of arrangement if a decision is made to modify and renovate KI’s house to accommodate BSH, and the possible life trust which may exist from BSH’s late wife’s estate.
The Board also considered that a potential conflict of interests exists for KI if she was to be appointed administrator, particularly if modifications were made to her property to accommodate BSH. KI owns her property and has every right to protect her interest in it. If modifications are done to KI’s property to meet the needs of BSH then decisions as to who should pay for the modifications are required and if BSH meets payment, issues as to whether those modifications have increased or decreased the value of KI’s property exists. Further if the change to accommodation arrangements break down and BSH is required to find other accommodation then issues as to how that accommodation would be funded could arise, particularly if funds have been spent on modifications to KI’s house.
Mr Cocker indicated that if there was any conflict of interests this could be overcome by KI seeking advice and direction from the Board. The Act however provides that the Board must be satisfied that the proposed administrator or guardian is not in a position where the person’s interest conflict or may conflict with the interests of the person. The Board therefore believes Mr Cocker’s submission is misconceived.
The Board accepts that the Public Trustee is an independent, professional Administrator with sufficient expertise to perform the functions of administrator. There is no conflict arising for the represented person from the Public Trustee being appointed. The Public Trustee can dispassionately fulfil the required duties without jeopardising family relations.
Weighing the respective advantages and disadvantages of the appointment of Public Trustee or KI the Board was not persuaded the existing order should be revoked or varied, except for the length of the Order. The approach taken by the Board to arrive at this conclusion is consistent with the approach identified in Holt v Protective Commissioner (1993) 31 NSWLR 227, and applied in FHT (Administration) [2007] TASGAB 7 at [13].
APPOINTMENT OF A GUARDIAN
Section 21 of the Act provides:
(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.
Mr Cocker stated that BSH’s wishes are that KI be his guardian. “He has complete confidence in her and finds her personal support to be invaluable.” KI indicated “I am aware of BSH’s needs and I am best placed to make decisions about his healthcare and accommodation. I am with him most days.” The Board acknowledges that KI has provided care and support to BSH, since the original Orders.
BSH’s daughters and sister supported the appointed of the Public Guardian and referred to the family conflict that existed between members of the family and KI and the concern that they would not be notified of major life events concerning BSH. The conflict was confirmed by KI. The Board is mindful of the ‘desirability of preserving family relationships’ as far as this is possible, and does not believe the appointment of KI would assist what are already tenuous family relationships.
The Board’s major concern in appointing KI guardian is her compatibility with the administrator of BSH’s estate, the Public Trustee. As indicated earlier in this Statement of Reasons KI expressed a lack of confidence in the Public Trustee and opined at hearing that ‘they were incompetent.’ KI stated she did not believe the Public Trustee were transparent, which was refuted by the Public Trustee. She indicated she had difficulty in getting paperwork from the Public Trustee and had attempted to make contact with Centrelink to seek a reassessment of the aged care fees despite the Order. When asked directly how she would work with the Public Trustee if they were appointed administrator and she was appointed guardian KI stated ‘it has been difficult since March to deal with the Public Trustee.’
The Board has no confidence that KI would be able to work with the Public Trustee if she was appointed guardian. It is essential that a guardian and administrator have a good workable relationship focused on the best interests of the represented person. The Board believes there would be potential of significant conflict and the relationship between the Public Trustee and KI would become irretrievably broken down if the KI was appointed guardian. The Board therefore believes it is desirable to appoint the Public Guardian, who is independent and impartial.
DETERMINATION
The Board remained of the view that the requirements of s 20 and s 51 of the Act were satisfied. Accordingly, the Board Orders:
Administration
(1) That the Public Trustee continue 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 order remains in effect until the 19 November 2021.
Guardianship
(1) That The Public Guardian continue as the Represented Person’s guardian.
(2) That the powers and duties of the Guardian are limited to decisions concerning:
(i)where the Represented Person is to live either permanently or temporarily; and
(ii)consent to any health care and/or medical treatment that is in the best interests of the Represented Person and to refuse or withdraw consent to any such health care and/or medical treatment.
(3) That the order remains in effect to19 November 2021.
0