CBT - applications for the appointment of a guardian and an administrator
[2013] TASGAB 3
•19 April 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
CBT - applications for the appointment of a guardian and an administrator
Neutral citation: CBT (Guardianship and Administration) [2013] TASGAB 3
REASONS FOR DECISION for the appointment of a guardian
Kim Barker (Member)
Date of hearing: 4 April 2013
Guardianship – disability – incapacity – need for a guardian – represented person's lack of insight into accommodation and care needs - least restrictive alternatives – wishes vs best interests of the represented person – unsuitability of family member for appointment
Guardianship and Administration Act, 1995 s. 6, 20, 21, 51
On 3 January 2013 the Board received an emergency application for the appointment of the Public Guardian to make decisions regarding where CBT should live, following her admission to the Roy Fagan Centre, a secure psycho-geriatric facility in Hobart. This application was granted on 4 January 2013 and the Public Guardian appointed for a period of 28 days. On 1 February 2013 the Public Guardian’s appointment was extended for a further 28 days.
On 15 February 2013 the Board received an emergency application for the appointment of The Public Trustee as administrator. This appointment was made for a period of 28 days, on 18 February 2013, and then extended for a further 28 days on 22 March 2013.
A full application for the appointment of a guardian made by Mr Colin Brett, Clinical Nurse Consultant of the Roy Fagan Centre, was received by the Board on 13 February 2013. Mr Brett’s application proposed the appointment of the Public Guardian.
Two applications for the appointment of an administrator were received by the Board, the first by Mr Brett on 21 February 2013, and the second by TT (son) on 25 February 2013. Both applications proposed The Public Trustee for appointment.
The applications were heard at the Roy Fagan Centre in Hobart on 4 April 2013. CBT attended the hearing, along with the following people:
· Ms Lisa Warner, Public Guardian
· Mr Jim Patterson, Advocacy Tasmania
· TI, sister
· NT, son (by phone)
· Mr Tim Urbanc, RN Roy Fagan Centre on behalf of the applicant
I had before me the following documentation:
· Reports from The Public Trustee and the Public Guardian in relation to the emergency orders
· The emergency and full applications, as noted above
· A health care professional report from Dr Grover, dated 12 February 2013
· A report by the Board’s investigator dated 27 March 2013.
Section 51 of the Guardianship and Administration Act 1995 (the Act) enables the Board to appoint an administrator of a person’s estate if it is satisfied that the person has a disability which results in an inability to make reasonable decisions in respect of his or her estate, and is in need of an administrator. I was so satisfied, and The Public Trustee was appointed administrator of CBT’s estate. This statement of reasons relates only to the decision of the Board to appoint the Public Guardian as guardian. Should reasons be required regarding the appointment of an administrator, I reserve the right to supply further reasons for that appointment.
In assessing the application pursuant to section 20 of the Act , the Board must enquire as to whether:
(a) CBT is a person with a disability,
(b) Her disability renders her incapable of making reasonable judgments about her person and circumstances,
(c) Whether she is in need of a guardian, and
(d) The eligibility of any nominees for appointment as guardian.
The Board must also balance the principles in section 6 of the Act:
A function or power conferred, or duty imposed, by this Act is to be performed so that
(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 CBT a person with a disability?
The health care professional report prepared by Dr Grover states that CBT has dementia and a major depressive disorder. Dr Ratnagobal’s emergency guardianship application states that CBT has moderate dementia and depression with suicidal ideation. Dr Bakas’ emergency administration application states that she has dementia and depression, with cognitive impairment resulting from both.
CBT denied having dementia but acknowledged that she has suffered with depression. I took into account Mr Urbanc’s comment in the hearing that CBT does not have full insight into her condition, and similar comments in the Public Guardian’s report of 22 February 2013 subsequent to a conversation with Dr Bakas, that CBT can at times be “completely insightless as to her disability”.
On the basis of the medical evidence I was satisfied that CBT has a disability.
Is CBT, because of that disability, unable to make reasonable judgements about any matters relating to her person or circumstances?
Dr Grover’s report states that CBT “is unable to make decisions for herself regarding multiple areas of life” and that she is “vulnerable to demands/pressures from certain family members who do not have her best interests in mind necessarily”. Her disability is noted as affecting her memory, capacity for new learning, impulse control and planning and reasoning ability.
Mr Brett’s application reported that CBT was admitted to the Roy Fagan Centre for treatment of her depression after it was found that she was not coping with activities of daily living at home, such as preparing meals, showering and dressing. She had been relying on her sister, TI, for support but her needs had increased to the point that she could no longer provide the appropriate level of supervision. Although her condition had improved with treatment she still lacked insight into her care needs. Her sister, CN, had persuaded her to return to her home, against the advice of the medical team and TI.
TI and TT, between them, gave the following history. CBT had been treated with anti-depressant medication for the last 20 years or so. A few years ago, her twin sister, CN, moved in with her. She was there for about 18 months. The relationship deteriorated to the stage where CN was refusing to contribute at all to the household finances and CBT was paying for everything. She became increasingly distressed by this situation but felt unable to do anything. She asked each of her children to ask her sister to leave. She became severely depressed and, about two and a half years ago, went to Noosa to stay with her son, NT. She remained there for some months until she had improved somewhat, and then returned to Hobart. However, she immediately started to deteriorate again. TI moved in with her, initially intending it to be for just a few days, but she clearly wasn’t coping and it turned into months. During this time TI cared for her and attended to paying the bills on her behalf.
TI offered the opinion that her sister’s mental state had improved significantly since her stay at the Roy Fagan Centre and change in medication. She said she believes she might be able to cope at home and might be able to manage her own finances.
Mr Urbanc confirmed that there had been a significant improvement in her depression, however reported that the medical team at the Roy Fagan Centre continued to hold significant concerns about her ability to cope, and did not consider that she has the capacity to fully appreciate her care needs. He read from an occupational therapy report in respect of an assessment undertaken on 7 March 2013, which indicated that CBT had difficulties with simple arithmetics, displayed concrete thinking, had poor reasoning and problem-solving abilities, and demonstrated difficulties initiating and generating ideas and tasks. The occupational therapist noted CBT’s wish to return home to live, but concluded this would not be safe.
I appreciate that CBT’s depression has improved and that she is, as TI has pointed out, functioning much better as a result. However I concluded from the history given to me that her problems with caring for herself, managing independent living and withstanding the influence of others have not been confined to the times she has been acutely depressed. I am satisfied that even now, with her depression adequately treated, CBT lacks the insight, reasoning and planning skills to make reasonable decisions as to where she should live.
Does CBT need a guardian?
The medical team is of the view that CBT is unable to safely live independently, that she would be at risk of self-neglect, and that she continues to require accommodation at the Roy Fagan Centre. Ms Warner stated that CBT had acknowledged to her that living at home was now “beyond her” and she would be afraid to live at home by herself. I note the report of the Public Guardian dated 22 February 2013 whish states that CBT “at times…wants to live independently and is completely insightless as to her disability and circumstances whereas at other times she recognises her limitations and wants to live in residential aged care”.
CBT denied having any concerns about living independently. She indicated to me that she would go home if she were free to make the decision herself, in spite of the advice of her doctors.
I am satisfied that CBT needs a guardian to firstly give consent to CBT’s accommodation at the Roy Fagan Centre and then to make decisions regarding ongoing accommodation on her behalf. I note the President’s policy published on ‘Detention of people with dementia in secure facilities in State care in Tasmania’. I also note that the applicant sought the appointment of a guardian to ensure that CBT’s accommodation at the Roy Fagan Centre is safe, appropriate and lawful.
TI expressed some concern that CBT had only been given leave twice in the past couple of months and that it would be reasonable for her to have a trial at home before the decision to move into nursing home accommodation could be made. Mr Urbanc stated that a trial of independent living had not been considered by the treatment team. Because of CBT’s concerns to this effect, a guardian will also be required to make decisions regarding leave and a trial home.
I am satisfied that the order can be limited to these areas of needs and that the limited order is the least restrictive alternative in these circumstances.
The eligibility of any nominees for appointment as guardian
Section 21 of the Act sets out the requirements for eligibility as a guardian (other than for the Public Guardian) as follows:
“(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.”
In this case, the applicant nominated the Public Guardian as the proposed guardian. The application stated that CBT had indicated that she would be happy for TI to make decisions about where she is to live. During the hearing, Ms Warner asked CBT who she would like to help her to make decisions and she again responded that she would like her sister, TI, to help her.
Whilst I am required to take into account CBT’s wishes, I am also required to take into account other factors, including the ability of the proposed guardian to act in the best interests of the represented person, the potential for any conflicting interests and the desirability of preserving family relationships.
I have no doubt that TI has her sister’s best interests at heart – she is clearly concerned for her well-being and has undertaken a significant caring role over a long period of time. However, TI did demonstrate in the hearing a difference in opinion with the medical team regarding her sister’s current capacities, which I considered may indicate an under-estimation on her part as to her sister’s on-going care needs, or an optimism, perhaps fuelled by CBT’s own denial of her impairments. For example, when given the assessment of the occupational therapist, TI responded that “everyone has problems with maths” and “everyone struggles to cope under pressure” (or words to that effect), which I interpreted as something of a denial as to the implications of the assessment.
I was also concerned as to TI’s ability to make decisions in CBT’s best interests that might be contrary to her sister’s wishes, which is a common and understandable pitfall for family members taking on this role. I believe it is with this in mind that TT expressed a clear preference that a third party be appointed in both the administrator and guardian roles, so that CBT would not be drawn into conflict with a guardian who is also a family member where she did not agree with a decision made.
Taking all those factors into consideration, I determined that the Public Guardian is the appropriate person to appoint to the role of guardian for CBT.
CBT’s wishes, her best interests and the least restrictive alternative:
CBT clearly expressed her wish to not have a guardian appointed or, alternatively, to have TI help her with decision-making. I considered neither of those options to be in her best interests. I considered her interests to be best served by the Public Guardian making objective decisions regarding accommodation options that will ensure her safety and well-being. I considered that it was appropriate to limit the order to decisions regarding accommodation, however given TI’s concerns regarding the lack of leave and the possible appropriateness of trialling independent living at home, I have included powers for the guardian to make decisions about those matters also.
The Board’s Decision:
The Board was satisfied that
is a person with a disability, and
is unable by reason of the disability to make reasonable judgements in respect of his estate, and
is in need of an administrator;
THE BOARD ORDERS
That The Public Trustee be appointed as the represented person’s administrator.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That the administration order remains in effect to 3 April 2016.
That the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live whether permanently or temporarily, including advocating for leave from the Roy Fagan Centre and approving a trial return to her home if appropriate.
6. That the guardianship order remains in effect to 3 April 2014.
Kim Barker
19 April 2013
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