BTU (Guardianship and Administration)
[2019] TASGAB 3
•1 February 2019
CITATION: | BTU (Guardianship and Administration) [2019] TASGAB 3 |
HEARING DATE(S): | 1 February 2019 |
DATE OF ORDERS: | 1 February 2019 |
DATE OF STATEMENT OF REASONS: | 4 March 2019 |
BOARD: | Stuart Roberts (Chair), Elizabeth Clippingdale, Fred Lester |
APPLICATION | Guardianship and Administration |
CATCHWORDS: | Guardianship and Administration - brain injury secondary to cerebral stroke - unable to make reasonable decisions - requires 24/7 care - patient and family opposed to transfer to aged care facility - patient’s best interests. |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas) |
Statement of Reasons
On 1 February 2019 the Guardianship and Administration Board (the Board) heard an application for Guardianship and Administration for BTU (who is ‘the proposed represented person’). The Application was filed by Ms Leanne Sanderson, a social worker at the Launceston General Hospital, seeking that the Public Guardian be appointed as Guardian and the Public Trustee be appointed as Administrator for the proposed represented person.
The BTU suffered a stroke on 28 September 2018 and was taken to the Launceston General Hospital. He was still a patient at that Hospital on 1 February 2019 and was not able to attend the hearing.
The following persons attended the hearing:
·Leanne Sanderson – the Applicant
·BI - the proposed represented person’s wife
·N - the proposed represented person’s son
·TT - the proposed represented person’s son
·Mr Mebrahtu Tesfamariam Mengesha – an interpreter
·Ms Di Shephard - representing the Office of the Public Guardian
·Ms Emma Curbishley - representing the Public Trustee
Mr Mebrahtu translated the English spoken at the hearing into the Tigrinya language and vice versa
The Board had the following documents before it:
·Application for Guardianship & Administration dated 14 December 2018
·Health Care Professional Report from Dr Ko dated 14 December 2018
·A further medical report from Dr Ko dated 9 January 2019.
As a result of the hearing the Board was satisfied that BTU is a person with a disability and, because of his disability, he is:
·unable to make reasonable judgements in respect of his financial and his personal circumstances; and
·is in need of a guardian and an administrator.
Full details of the Orders appear at the end of this Statement of Reasons.
The Public Trustee has requested a Statement of Reasons in relation to the Board’s decision. This Statement of Reasons deals with the appointment of the Public Guardian as guardian, and the appointment of the Public Trustee as administrator for BTU
Requirements of the Guardianship & Administration Act 1995
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
c. 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:
a. adopting the least restriction of the proposed represented person’s freedom of decision and action as is possible in the circumstances;
b. promoting the best interests of the proposed represented person; and
c. that, if possible, the wishes of the proposed represented person are carried into effect.
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?Is the proposed represented person a person with a disability, and if so, is
As mentioned above, the Board had the benefit of Health Care Professional Report from Dr Ko dated 14 December 2018. That document states that BTU suffered a brain injury secondary to a large cerebral stroke. It states that BTU “does not have the clinical capability/consent for his own care needs” and that the proposed represented person is unable to:
·make reasonable decisions about where he should live;
·understand the nature and effect of his medical treatment;
·determine the support services he should access;
·manage his day to day financial requirements; or
·make major financial or legal decisions.
The further medical report by Dr Ko dated 9 January 2019. In the latter document, Dr Ko states as follows:
BTU, 75 year old gentleman presented to LGH on 28/09/2018 with a severe cerebral stroke. He sustained permanent dense right sided upper & lower limb weakness, along with the loss of the ability to communicate & swallow normally. Since then, he remains fully-dependent with regards to his activity of daily living.
He was reviewed by both the stroke team & allied health team throughout his inpatient admission. Despite multidisciplinary team management, BTU has not made a significant recovery up to this stage (beyond 6 weeks post-stroke). He has been fully bed-bound & requires full-time, high-level nursing care. He is incapable of independent self-care. He requires complete assistance with regards to feeding (through his gastrostomy tube), toileting, transferring, daily medications and insulin with blood sugar monitoring.
His condition was also reviewed by consultant stroke physician Dr. D. Tryambake. His long term prognosis remained guarded, potential for significant recovery remains minimal and current neurological damage will likely remain permanent & irreversible.
At the hearing, it was the applicant’s evidence that BTU still had a need for 24/7 care, notwithstanding that there had been some minor improvements in his condition - he had regained some speech and had regained some swallowing ability and had started to eat pureed food. However, the applicant stated that neither improvement was at a functioning level and neither would be likely to become that way.
The Board asked whether the family accepted the medical evidence that had been provided. Some discussion ensued and after a short adjournment, during which the interpreter translated both of Dr Ko’s reports for the proposed represented person’s family members, they indicated that those reports were accepted but referred to the improvements in BTU’s condition noted above.
No other medical evidence was provided to the Board.
The Board is satisfied that BTU is a person with a disability within the meaning of the Act, and that by reason of his disability he is incapable 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.
Is the proposed represented person in need of a guardian and/or an administrator?
In the application, it was stated that BTU has high care needs with complex care requirements such as “Bolus peg feeding, continence support, pressure management and medication”. BTU’s detailed and onerous care schedule was set out in the application
The application also stated that the current house in which BTU lived is not suitable for his needs and the family were looking at swapping houses with another family in the hope that this would be suitable. However, the suitability of that house or its ability to accommodate the required equipment was unknown at the time of the Application.
It was stated that BTU was unable to swallow his own secretions and therefore had no oral intake. It was said that the family were aware of this and were aware that a feeding peg had been surgically placed in BTU’s abdomen for his feeds to be administered. However, it was also said that family were regularly observed giving BTU drinks that could cause him to aspirate and develop a life-threatening infection.
The application went on to say that the family were of the opinion that their community could assist BTU when and if needed, but they were struggling to understand the level of medicalised and complex care that he needs. It stated that there is a need for at least four fully trained carers to provide 24/7 support.
As noted above, it was the applicant’s evidence at the hearing that BTU still had a need for 24/7 care, notwithstanding that there had been some minor improvements in his condition.
The applicant advised the Board that because of the level of care that BTU requires, there is a need for a minimum of four people to complete quite detailed carer training. She explained that there were four stages to the training:
a. Stage I entails family members being shown what needs to be done, such as feeding, rolling and hoisting;
b. Stage II requires the participants to do those caring activities under the supervision of the nurse;
c. Stage III requires two members of the caring team to come to the hospital for hours at a time to put all those caring activities into practice; and
d. Stage IV is where the family would come into an independent living unit and do the 24/7 care for two days under the supervision and have a nurse present to help if needed.
The applicant pointed out that some of BTU’s potential carers had not yet reached Stage II and some others had not yet reached Stage III. As a result, the hospital authorities did not have a safe discharge plan, and discharging BTU would place him at risk. For example, there were risks of BTU contracting aspiration pneumonia and bedsores developing sepsis. Either condition could be fatal.
The applicant also stated that the identity of potential carers had not been strongly identified at the time of the hearing. She said that because of the high care needs and the lack of commitment to care, members of the Stroke Unit of the hospital were of the view that an aged care placement would be suitable for BTU.
However, she conceded that BTU and his family would not agree with the aged care option and consequently a substitute decision-maker was needed to make the decision where BTU would live. She stated that because the family were against BTU going into aged care, it was thought that there may also be a need for an Administrator to help with the decision-making in relation to the financial side of that.
It was clear from statements made by family members that BTU wishes to go home and is strongly opposed to going into an aged care facility. It was also clear that the family members are not willing to make any decisions that could be contrary to the wishes of BTU.
After some lengthy discussion, one of BTU’s sons stated in English that it would be “better for the Guardian to go and ask (the proposed represented person) what he wants” and BTU’s wife subsequently stated through the interpreter: “Let’s give the authority to the Public Guardian to decide and we’ll see what happens.”
In relation to financial matters, the family confirmed that BTU’s only source of income is from Centrelink and he does not own any property of significant value. The family home is rented.
No evidence was presented to the Board contrary to Dr Ko’s evidence that BTU is unable to manage his day to day financial requirements or to make major financial or legal decisions
Ms Curbishley explained to the family that if the Public Trustee was to be appointed as BTU’s Administrator, the Public Trustee would be required to redirect BTU’s pension entitlement to the Public Trustee rather than to BTU’s account. The Public Trustee would then use those funds for BTU’s benefit and what the Public Trustee would be required to do with that pension entitlement would depend upon where BTU would live.
Ms Curbishley explained that the main role of the Public Trustee would be to ensure that BTU’s income is used for his benefit, and only for his benefit.
Ms Curbishley also informed the family and the Board that, if a decision is made that BTU should live in an aged care facility, documentation would need to be completed by the Public Trustee for Centrelink and for the aged care facility. She also pointed out that most of BTU’s pension entitlement would be required to pay his fees aged care facility fees, and that his pension would need to go to the Public Trustee to pay those fees.
Conclusions
The Board concluded that BTU is in need of a Guardian to make accommodation decisions and to have the power to convey him to accommodation given his wish to return home and his opposition to entering aged care (if such a decision is made), and to consent to the provision of support services to BTU. The Board decided that the appointment of the Public Guardian was in the best interests of BTU.
When hearing an application for Administration, the appointment of the Public Trustee is one of the options available to the Board pursuant to section 54 of the Act. The Board does not need to assess the eligibility of the Public Trustee, nor seek the Public Trustee’s consent to appointment. Indeed, the Board has often noted that the Act provides a statutory predisposition to the appointment of the Public Trustee. In this case, such an appointment will have the advantages of:
·the independence of the Public Trustee;
·a dispassionate and neutral approach where there is potential for family conflict and divided views about the best interests of BTU; and
·the expertise of the staff of the Public Trustee, their experience in managing estates, and the expertise accumulated by them.
The Board decided that it was in the best interests of BTU to appoint the Public Trustee as Administrator of his estate.
The Board also decided that each appointment should be for one year.
In relation to the application for Guardianship orders, the Board Ordered:
a. That the Public Guardian is appointed as the Represented Person’s Guardian.
b. 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;
ii.providing consent to any reasonable measures required to convey the Represented Person to the place of residence as determined by the Guardian; and
iii.providing consent to the provision of support services to the Represented Person.
c. That the Order remains in effect until the 31st day of January 2020.
In relation to the application for guardianship orders, the Board Ordered:
a.That the Public Trustee (Tas) is appointed as Administrator of the estate of the Represented Person.
b.That the powers and duties of the Administrator are those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
c.That the Order remains in effect until the 31st day of January 2020.
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