CEC- Application for the appointment of a Guardian

[2015] TASGAB 9

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

CEC- Application for the appointment of a Guardian

REASONS FOR DECISION for the appointment of a guardian

Rodney Lester (Chairman)

Date of hearing: 26^th June 2015

Guardianship -  best interests - care requirements

1. The hearing was in respect of CEC, an 89 year old woman who at the time of the hearing was receiving respite care. She was under an Emergency Guardianship Order with the Public Guardian acting as her guardian. The application for guardianship was made by Leanne Sanderson from the Department of Social Work at the Launceston General Hospital. The applicant proposed that the Public Guardian be appointed guardian. 

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 a guardian. The information and reports available to the Board were also detailed.

3. The hearing was held at the in Launceston on the 26^th June 2015. It was attended by Leanne Sanderson, (the applicant), TT, (CEC’s case manager), NF (community dementia nurse), Kylie Hillier, (office of the Public Guardian), CEC, (proposed represented person) and SC (CEC’s son).

Disability – sections 3(1), 20(1)(b)

1. The Board had a Health Care Professionals Report from Dr Rebecca Monahan which resulted from a consultation on May 22^nd 2015. It was clear that CEC has a disability as defined in section 3(1) of the Guardianship and Administration Act 1995. Dr Monahan’s report gives a diagnosis of Alzheimer’s type dementia which is deteriorating. It was clear that the disability had been evident for some time.

1. There were no dissenting views when the Chairman indicated to the hearing that, given the clarity of the evidence available, he was comfortable to proceed upon the basis that CEC had a disability.

Incapacity – section 20(1)(b)

1. Dr Monahan stated in the Health Care Professionals Report that ‘CEC is completely disorientated, unable to answer questions or follow commands. She has no capacity for learning or comprehending and cannot plan or reason.’ Dr Monahan also observed that ‘CEC is severely demented. She needs full supervision with all aspects of her daily life.’

1. There was no evidence introduced that challenged the proposition that CEC lacked capacity in almost all areas, and that this incapacity was a direct result of her disability. SC did, however, suggest that perhaps CEC’s incapacity was not as complete as was being indicated in the reports, although he agreed that there was still a significant incapacity resulting from her dementia.

1. The Board was of the view that the only reasonable conclusion was that CEC had a disability, and as a result of this disability lacked the capacity to make reasonable decisions in relation to matters concerning her accommodation, and 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)

1. Until recently CEC had been cared for at home by her son SC. On the 1^st May 2015 she was admitted to the Launceston General Hospital with pneumonia. There had been rising levels of concern about the ability of SC to provide the ever increasing levels of care required by CEC, although it is important to note that SC appeared to be firmly of the view that he had, could and would continue to provide appropriate care for CEC. CEC had recovered from her pneumonia and was ready to be discharged from hospital. The medical staff had not been prepared to discharge her back into SC’s care unless there was an appropriate discharge plan that provided for CEC’s ongoing needs. The Emergency Guardianship Order had allowed her discharge into respite, but clearly a longer term solution was required.

1. There was a substantial amount of material in the papers that discussed CEC’s care issues at home, and a great deal of detail on her needs, and the problems associated with meeting those needs. SC was strongly of the view, in the papers at least, that the best option for his mother was that she should be cared for at home by him. At the hearing he appeared to have moved his position somewhat in that he stated that he accepted that CEC would need residential care in the foreseeable future, but that the time for that to happen had not yet been reached. He estimated that possibly sometime in the first half of 2016 would be around when CEC needed full time care. The applicant, and CEC’s other care staff, were firmly of the view that CEC needed full time care now.

1. CEC’s wishes were not able to be determined due to her disability, however the following observations were made. CEC was comfortable at her current facility and health wise was said to be progressing very well. She was happy with the social contact and seemed to fit in well in her surroundings. Notwithstanding this the Board was comfortable to accept SC’s assertion that his mother’s wish would have been to stay at home.

2. The information available to the Board suggested that it was improbable that there would be a resolution to CEC’s discharge without the intervention of a guardian. The relationship between SC and the hospital staff were strained at best, and there remained a substantial divergence of views on what was needed to provide an appropriate environment for CEC to reside in.

3. There was no suggestion that a less restrictive option was available that would serve CEC’s best interests, and it was clearly contrary to her best interests to allow the impasse to continue. The Board was of the view that disability, incapacity and need were all obvious, and that it was going to be in CEC’s best interest to appoint a guardian to deal with the pressing issue of her ongoing accommodation needs. At the stage of the hearing there were no other identifiable issues that required the intervention of a guardian.

Appropriateness of appointee - sections 21 and 15

1. The application was for the Public Guardian to be appointed. There was no alternative proposed at the hearing, and it appeared that the Public Guardian had the support of all those present. 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 issue of an assets assessment for Centrelink to facilitate a calculation of nursing home fees for Betty. This issue was discussed with SC, who is CEC’s attorney, acting under an Enduring Power of Attorney. Initially SC was of the view that he could probably have the form completed for the guardian sometime later in October this year. After further discussions SC agreed that he would have the form completed by the following Friday. The Board advised the guardian that if she came to the view that SC was using his position as attorney to frustrate the guardian’s efforts to act in CEC’s best interest then she should consider seeking a review of the Enduring Power of Attorney.

Time for review:

1. There was some discussion about the time required for the order to effectively serve CEC’s best interests. It was not considered that a 3 year order would be required as everyone seemed to accept that the requirement for some form of full time care was inevitable in the foreseeable future, and once a determination of the nature and timing of that care had been made, and CEC had settled into the environment, in all probability there would be no need for an ongoing order. It was determined that a 12 month order would be appropriate.

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 her person and circumstances; and

• is in need of a limited guardian;

THE BOARD ORDERS

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

2. That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live whether permanently or temporarily and

3. That the order remains in effect to 25 June 2016.

RODNEY LESTER             
MEMBER

Date of Decision
26^th June 2015