CFN (Guardianship and Administration) - [2014] TASGAB 13

GUARDIANSHIP AND ADMINISTRATION BOARD
BURNIE

CFN – Application for appointment of a guardian and administrator by DEPARTMENT OF HEALTH AND HUMAN SERVICES

CFN (Guardianship and Administration) [2014] TASGAB 13

REASONS FOR DECISION

Colin McKenzie (Chair)
Grant Kingston (Board member)
Mary Davies (Board member)

Date of hearing: 29 May 2014

Guardianship and Administration – disability – incapacity – need for a guardian – rehabilitation strategies - least restrictive alternatives

Guardianship – proposed represented person at risk of influence – capacity to make reasonable decisions – evidence of actions and medical evidence

Guardianship and Administration Act s. 19, 50

This is an application under sections 19 and 50 of the Guardianship and Administration Act 1995 for appointment of a guardian and an administrator.
The proposed represented person is a 48 year old woman who lives independently in private rental accommodation.
The application was received on 11 April 2014 and was heard on 29 May 2014 in Burnie.
The application was made by an employee of the Department of Health and Human Services, Paul Waddington, Huntington’s Disease Support. CFN was assisted by an advocate from Speak Out Association of Tasmania Inc, Debra Montgomery. The applicant, a representative of XXXX, UF, a representative of Mission Australia, Rebecca Redman Walsh, an Occupational therapist from Disability Services, Cynthia Wong and representatives of the Public Trustee and Office of Public Guardian participated in the hearing.
The grounds for the application were;
a.that CFN has Huntington’s Disease which;
i.Rendered her severely affected by dementia
ii.Impaired her capacity to comprehend her financial affairs
b.That family members were no longer interact with her and were in conflict about her financial management needs.
c.That her financial affairs were being managed by XXXX when that was not an appropriate vehicle for that management XXXX not having legal capacity to meet CFN’s needs.
d.That she is not meeting her financial obligations in a timely manner
e.That she is vulnerable to financial exploitation.
f.That transition into a high care facility would be required in the foreseeable future but the need for that transition was disputed by CFN and her family.
The diagnosis of Huntington’s disease was not in dispute. The extent of disability resulting from that condition was in dispute. CFN disputed that there was any need for any order. Her advocate informed the Board that CFN contends she is able to manage her finances and residential decisions, she is able to understand explanations, given adequate time, to make decisions and direct the people around her who support her to carry out her wishes.
The Board referred to the medical evidence available to the Board including;
a.Reports written by Dr Andrew Churchyard dated 6 March 2013 and 12 February 2014.
b.Report written by Dr Luke Smith, Neuropsychologist dated 6 March 2013
c.Health Care Professional report written by Dr J Ostenfeld, GP.
The application, supported by a declaration, contained evidence of circumstances relied upon by the applicant who has direct involvement with CFN.
CFN’s advocate gave evidence that she had received the reports and the reports had been discussed with CFN and with representatives of Mission Australia. The reports were discussed also with CFN and another representative of Speak Out. The Mission Australia representative said she discussed Dr Churchyard’s report with CFN. There was also evidence that CFN had a meeting with Dr Churchyard in the week prior to the Board hearing when he indicated to CFN that the hearing was to deal with financial matters. The Board explained to CFN that the hearing was to deal with both Administration and Guardianship. The Board summarised the key information contained in Dr Churchyard’s report and Luke Smith’s report critical to the decision of the Board noting the clear statements of assessments regarding diagnosis and capacity. The Board noted that there was no contrary medical evidence and inquired of the participants in the hearing whether any evidence, expert or lay would be submitted with a view to contradicting the medical evidence before the Board.
Evidence was given by the representative of XXXX, UF that they have not made any financial decisions for CFN. CFN compiles her own grocery lists and requests payment of her own bills and requests money. The representative of XXXX said that the only impediment to CFN handling her own money was that her physical disabilities prevented her from going to the bank. CFN directs XXXX as to what she wants to do with her money. CFN gave evidence that she was happy with this arrangement. She said that it was hard for her to go to the bank because she has a walker. A document setting out bank transactions was tendered by the representative from XXXX. When CFN was asked about a large transaction on the document she said it was for clothes. This was disputed by the representative of XXXX who was asked if she disputed the medical opinions. She gave evidence that she interpreted CFN’s responses as indicating a capacity to make her own decisions.
Ms Wong, an Occupational Therapist with over a year of involvement with CFN said that she did not dispute the medical reports. She found CFN open to considering advice and appearing to be aware of alternatives on a day-to-day basis, and for functioning in her daily life her cognitive skills were adequate. She said she had submitted reports, which were not put before the board. She said CFN appeared to evaluate the advice she was given – “she thinks things out for herself” - but made decisions contrary to advice such as when her wish to continue smoking was accommodated with the use of a fireproof apron in the interests of safety. CFN made a decision to have XXXX handle her money when CFN’s family said in CFN’s presence that they did not want to do it because they could not agree how CFN’s money should be handled. Ms Wong said she considered the Public Trustee was the preferred Administrator.
CFN was informed about the fees charged by the Public Trustee and did not want to have to pay those fees. The representative of XXXX said CFN had been informed about the Public Trustee and had made her own decision to have XXXX handle her money.
Mr Waddington gave evidence about the need for a guardian. He said CFN is not capable of making long term decisions regarding her welfare. He relied on Dr Churchyard’s report. He said that CFN agreed in meetings to socialise, then two days later would refuse. He referred to an earlier application that had been submitted to the Guardianship and Administration Board because CFN had agreed with Dr Churchyard that there was a necessity for it. It was withdrawn before a hearing because the applicant was persuaded that CFN could manage without a substitute decision maker. Since then, he said CFN had declined an application being made to the Board. Mr Waddington stated also that CFN is left (delete isolated) by herself for long periods of time. He considers her to be a severe choke and falls risk and said that a guardian could address those risks by applying pressure to obtain increased services for CFN, including stimulation outside the home. Mr Waddington said that physiotherapy and walking has been shown to lead no improvement in CFN’s mobility. In addition she cannot self medicate and needs assistance in opening a Webster pack. Mr Waddington referred to the fact that CFN had agreed with the advice given in February, and in the week before the hearing, by the Neurologist, of the need for her to socialise, and to explore different options for doing so. He said that she agreed in both meetings with the Neurologist to the appointment of an Administrator and a Guardian.
Ms Montgomery argued that it was a matter for CFN to decide that she did not want to socialise or to go XX, which was not an age appropriate facility for her. She said that CFN likes to stay at home and she chooses to do that. She said that CFN only agreed with the Neurologist because “it was easier”. Ms Montgomery agreed that there was a choking risk. The Board referred to the specific evidence from Dr Churchyard’s report regarding the choking risk and noted it did not have any medical evidence to the contrary.
CFN said she “had checked it out (meaning XX?) and she didn’t like it.”
The Board was informed that a speech pathologist had given advice regarding responding to the choking risk and that CFN cooperated with that advice. Evidence was given about other arrangements in place to minimise the risk of choking. CFN said she had an alarm device and could call for assistance.
There was evidence of an authority to Centrelink for Centrelink benefits to be paid to XXXX as nominee.

Evaluation

The Board is satisfied that CFN is a person with a disability, being Huntington’s disease, and is by reason of that disability, a person who is unable to make reasonable judgements in respect of matters regarding her estate and her person and circumstances relating to her treatment and residence.
The Board noted that the Board presumed the proposed represented person had capacity to make decisions. It noted that the medical evidence had been delivered to CFN and that there had been no contrary medical evidence and no application for adjournment to obtain such evidence. The Board did not accept that the evidence of CFN’s interactions with her supporters was sufficient to displace the medical opinions. Nor did the evidence adequately distinguish actions which were the result of bending to the influence of her advisor and supporters from actions which were the result of her independent evaluative and decision making process to demonstrate that CFN had capacity to make her own decisions. In the Board’s view the inconsistency in her expressed decisions provided evidence of her susceptibility to influence. That was most apparent where there was conflict between her advisors.
The Board determined that CFN is a person, who by reason of her disability is unable to make reasonable judgments in respect of matters regarding her medical treatment, residence and financial affairs.
The Board accepts that CFN needs a limited guardian for consent to treatment and decisions relevant to residence.
The Board accepts that CFN needs an administrator to manage her estate. The arrangement with XXXX could only continue without an Administrator if CFN had sufficient capacity to authorise and direct their actions on her behalf. The Board was not persuaded that she had demonstrated that capacity independent of the influence of her supporters and for the reasons set out above, the Board accepted the medical evidence on this issue.
The Board was not presented with any evidence of, and did not identify any less restrictive alternative to the orders set out below, which would meet the needs resulting from CFN’s incapacity.
The Board considered it in CFN’s best interests to make those orders because of CFN’s susceptibility to influence, her cognitive deficits and the number of, and conflict between her supporters, her medical advisors, rehabilitation and treatment professionals and service providers.

THE BOARD ORDERS

That The Public Trustee be appointed as administrator of the estate of the represented person.
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 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 either permanently or temporarily, and
consent to to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment, and

That the order remains in effect until 28 May 2017.

COLIN MCKENZIE Grant Kingston MARY DAVIES

DEPUTY PRESIDENT MEMBER MEMBER
24 July 2014