CNC (Request for Emergency Guardianship Order)
[2020] TASGAB 10
•23 March 2020
CITATION: | CNC (Request for Emergency Guardianship Order) [2020] TASGAB 10 |
HEARING DATE(S): | 23 March 2020 |
DATE OF ORDERS: | 23 March 2020 |
DATE OF STATEMENT OF REASONS: | 16 April 2020 |
BOARD: | Ms R Holder, President |
APPLICATION: | Emergency Guardianship Order |
CATCHWORDS: | Emergency Guardianship Order - lack of urgency – capacity – need - dismissal of application |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss6, 20, 65 |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Statement of Reasons
Background
On 23 March 2020, the Guardianship and Administration Board (‘the Board’) dismissed an Application for an Emergency Guardianship Order for CNC, the Proposed Represented Person (‘PRP’).
A request for a Statement of Reasons has been received from LXQ (‘the Applicant’), dated 7 April 2020.
Legislation
Part 8, section 65 of the Guardianship and Administration Act 1995 (‘the Act’) gives the Board the power to make orders if urgent circumstances exist, providing the Board is satisfied there may be grounds for making an order. Section 65 provides:
(1)Where the Board considers it proper to do so by reason of urgency, the Board may in respect of a represented person make any order or give any direction considered appropriate in the circumstances.
(2)Where the Board considers it proper to do so, by reason of urgency, the Board may, in respect of a person who is not a represented person but in respect of whom the Board considers that there may be grounds for making a guardianship order or an administration order make an order appointing –
(a)the Public Guardian as his or her guardian; or
(b)the Public Trustee as administrator of his or her estate –
and in either case the Board may make any order or give any direction considered appropriate in the circumstances.
…..
(4) In the exercise of its powers under this section –
(c)the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as the Board may think appropriate; and
(d)the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances; and
(e)…
(4A) The powers and functions of the Board under this section may be exercised and performed by one or 3 members of the Board as may be determined in each case by the President.
Further, section 6 of the Act sets out the underlying principles 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.
Section 20 of the Act provides the grounds for making a guardianship order:
(1)If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made –
(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 or her person or circumstances; and
(c)is in need of a guardian –
the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary.
Evidence
The Application for an Emergency Guardianship Order (‘the Application’) dated 20 March 2020 and filed by the Applicant was received by the Board Registry on 23 March 2020. The Application was accompanied by:
a.Discharge Referral Notes from [the hospital] in New South Wales (NSW) dated 25 February 2020;
b.Appointment of an Enduring Guardian (pursuant to section 6 of the Guardianship Act 1987 (NSW)) dated 21 February 2020; and
c.NSW Mid North Coast Aged Care Assessment Team letter to the PRP dated 20 December 2020.
The Application states that the PRP has Alzheimer’s disease, is homeless, and in February 2020 had an admission to [the hospital] in NSW. The Applicant made arrangements to fly to [the area in NSW] to collect the PRP and bring her to Tasmania with the intention of finding her ‘suitable accommodation and to keep an eye on her.’ The Application further states that the PRP was then brought to Tasmania and resided for a couple of weeks with the Applicant and her husband, before arrangements were made for a placement at a Residential Aged Care Facility (‘RACF’) in [Northern Tasmania]. It appears this arrangement was contrary to the wishes of the PRP and she subsequently left the RACF and was found by Tasmania Police and taken to a nearby hotel where accommodation was secured until 22 March 2020.
The Application also states that while in NSW the Applicant had made enquiries with the PRP’s solicitor, resulting in the PRP executing an Enduring Power of Attorney and Appointment of an Enduring Guardian on the 21 February 2020 (the Enduring Guardian Instrument). The PRP’s Enduring Guardian Instrument appoints the Applicant as the PRP’s enduring guardian and authorises the enduring guardian to have the following functions: to determine where she is to live, what health care she receives, what kind of personal services she receives and to consent to or refuse medical treatment. The Application also states: ‘We were not made aware that the enduring Power Of Attorney was not applicable outside of Tasmania.’
Section 81A of the Act provides:
Instruments made under corresponding laws
(1) Where it appears to the Minister that a law in force in another State, or in a Territory or country has substantially the same effect as Part 5 of this Act, the Minister may by notice published in the Gazette declare that the law is a corresponding law for the purpose of this section.
(2) Subject to subsection (3) , if an instrument appointing an enduring guardian that is made in another State, or in a Territory or country under a corresponding law complies with that corresponding law, the instrument is taken to be an instrument appointing an enduring guardian made in accordance with Part 5 .
(3) An instrument referred to in subsection (2) is valid only to the extent that it would be valid if it were an instrument appointing an enduring guardian made in accordance with Part 5 .
By notice published in the Tasmanian Government Gazette on 25 December 2019, the Minister for Justice in Tasmania has declared that Appointment of Enduring Guardians in Part 2 of the Guardianship Act 1987 of NSW is a corresponding law for the purposes of section 81A of the Act. Therefore the PRP’s Enduring Guardian Instrument dated 21 February 2020 pursuant to section 6, Part 2 of the Guardianship Act 1987 in NSW can be registered in Tasmania and operate as if it was made in Tasmania.
At the direction of the Board, the Board Registry attempted to call the Applicant on 23 March 2020, but was unable to reach her, but instead spoke to NXQ (the Applicant’s husband) who had full knowledge of the Application. The Registry spoke to NXQ about being able to register the NSW Enduring Guardianship Instrument pursuant to section 81A of the Act. The advice received from NXQ was that it was their ‘intention to register the Instrument that day’, so the enduring guardian could exercise functions under the Instrument. The Registry sent a filing cover sheet to the Applicant, with advice on taking this and the Instrument to Service Tasmania for registration.
Disability
The Board needs to be satisfied that the PRP may have a disability. The Board had before it Discharge Referral Notes (the Discharge Notes) relating to the PRP from [the hospital] in NSW. The Discharge Notes state that the PRP’s principal diagnosis is Alzheimer’s dementia. The Discharge Notes are authored by Dr Kate Coleman, physician. The Board accepts this evidence on a prima facie basis, and therefore, the Board determines there may be grounds for finding that the PRP is a person with a disability.
Capacity
The Board needs to be satisfied that by reason of disability the PRP is unable to make reasonable judgements in respect of her person and circumstances. The Discharge Notes state the PRP has:
[R]apid forgetfulness with short term memory. MRI Brain – mild white matter change, atrophy in the hippocampal and mesial temporary regions bilaterally – representing Alzheimer’s dementia. Moving to Tasmania Tuesday with friend LXQ who is planned for EG and PoA. Resistive at this stage to RACF, was previously co-signed as EG/PoA with previous husband.
The Board has no direct evidence or medical report as to whether the PRP has capacity to make reasonable judgments about her person and circumstances. The Board gives weight to the fact that on the 21 February 2020 the Applicant took the PRP to an appointment with her solicitor in NSW to execute a Power of Attorney and Enduring Guardian Instrument. The solicitor preparing the enduring instruments should have made a determination whether his client, the PRP, had capacity to understand the power and instrument at the time of signing, and presumably, it was considered she did. Further, the Discharge Notes from [the hospital] in NSW referenced an awareness of this intent and no issue was raised by medical personnel at the hospital that the PRP did not have capacity to execute the Enduring Power of Attorney and Enduring Guardian Instrument. It also appears from the Discharge Notes that the PRP had previously had an Enduring Guardian Instrument and had appointed the Applicant and her then husband as enduring guardians. It is therefore likely that both the Applicant and PRP at that time were made aware of the need for the PRP to have capacity at the time of executing the Instrument and an understanding of the role and duties of a guardian. Therefore, if the PRP had capacity to execute a power or attorney and Enduring Guardian Instrument approximately one month prior to the making of this Application, it is probable or at least possible, the PRP may well have capacity to make her own decisions as to where she is to live and/or about health or medical issues. Given the common law presumption of capacity, the Board is not satisfied on the limited information before it and having no direct evidence of the PRP’s capacity or a medical report, that the PRP may lack capacity to make reasonable judgments about her person and circumstances.
Need
The Board also needs to be satisfied there may be a need for the appointment of a guardian. If an Enduring Guardian Instrument exists and is registered, there is no need for an Emergency Guardianship Order appointing the Public Guardian as guardian. On the basis of the advice of NXQ that it was the intent of the Applicant to register the Enduring Guardian Instrument the Board is not satisfied that there may be a current need for a guardian. The Board sees no impediment to the registering of the Enduring Guardian Instrument.
Urgency
Further the Board is not satisfied that urgent circumstances exist. While the Application states the PRP is homeless, the Application states the PRP stayed with the Applicant for a period of time while she was trying to find suitable accommodation for the PRP, she then arranged accommodation for the PRP at a RACF, which the PRP left. The PRP has allegedly voiced a wish not to live in a RACF. Further temporary accommodation was then found for the PRP at a hotel.
If the Applicant believes the appointment of a guardian is needed then an Application for Guardianship (under section 20 of the Act) can be made. This process ensures the PRP is afforded procedural fairness. Procedural fairness affords the PRP, the parties and other persons with a proper interest in the matter the right to receive notice of the hearing and to present relevant material to the Board at hearing and, importantly for the PRP, the right to consider whether or not legal representation or advocacy is required.
Alternatively the Applicant can proceed to register the Enduring Guardian Instrument with the Board. If the Enduring Guardian Instrument is in its enduring stage (and medical advice should be obtained to clarify this), then the enduring guardian can make decisions within the powers of the Instrument.
The Board Registry has not received an Application for Guardianship or an Application for Review of An Enduring Guardian Instrument, with a Health Care Professional Report concerning the PRP. If an Application is made, it will be listed for hearing.
Decision
The Board is not satisfied on the grounds set out above that an emergency guardianship order should be made.
Order
The Board Orders that the Application for an Emergency Guardianship Order is dismissed.
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