DHX (Administration) - [2012] TASGAB 21

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

DHX on the application of DP and on the application of THE PUBLIC TRUSTEE (Administrator)

Neutral citation: DHX (Administration) [2012] TASGAB 21

REASONS FOR DECISION

Philippa Whyte (Chair)
Rowena Holder (Member)
Sue Hill (Member)

Date of Hearing 20 July 2012

Guardianship – person ‘in need of a guardian’ due to unsatisfactory living arrangements, complex health needs – eligibility of persons nominated as guardian – acting in the best interests of the person - compatibility of proposed guardian with the administrator - the desirability of preserving existing family relationships

Guardianship and Administration Act 1995 s. 6, 20, 21

DHX is a 30 year old man who lives alone at Launceston in Tasmania. DHX was involved in a motor vehicle accident in 1989. He has an acquired brain injury and other health issues. In July 2003 DHX received a settlement from the Motor Accidents Insurance Board (MAIB). Following a hearing before the Guardianship and Administration Board (the Board) on 25 July 2003 Tasmanian Perpetual Trustees (TPT) was appointed as his Administrator. On a review of the Administration Order on 10 February 2011 the Public Trustee was appointed in TPT’s place.
On 15 June 2012 the Board received an application from DP, DHX’s mother, for the appointment of a Guardian for DHX. DP proposed that she be appointed. The Board also received an application from the Public Trustee dated 5 May 2012 for the appointment of a guardian for DHX. The Public Trustee proposed that the Public Guardian be appointed.
Before appointing a guardian, the Board must be satisfied that DHX has a disability that renders him incapable of making reasonable judgments about his person and circumstances and is in need of a guardian (section 20 of the Guardianship and Administration Act 1995 (the Act)). If satisfied of these criteria the Board must assess the eligibility of any proposed guardian according to the criteria in section 21 of the Act.
When making a decision the Board must also balance the principles in section 6 of the Act which requires that 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
The Board heard the applications on 20 July 2012. The following people were in attendance:
·DHX (proposed represented person)
·DP (mother/applicant 1)
·HP (step father)
·TX (sister)
·ND (family friend)
·David Symons (Public Trustee/ applicant 2)
·Lyn Cameron (Family Based Care)
·Melissa Gardiner (Family Based Care)
·Kylie Hillier (Public Guardian)

The Board had the following documents available to it:
a)   Application filed by DP dated 7 June 2012
b)   Health Care Professional Report by Dr Andrew Jackson dated 15 May 2012 with two attachments as follows:
i.Letter from Dr Wurth to Dr Jackson dated 22 December 2011
ii.Discharge summary from Launceston General Hospital dated 11 September 2009
c)   Application filed by the Public Trustee dated 5 May 2012
d)   Undated report from Family Based Care
e)   Email correspondence from the Public Trustee to the Board dated 20 October 2011; 4 May 2012; and 26 June 2012
f)   Board members’ notes from review of administration hearing on 10 February 2011;
g)   Letter from Tasmanian Perpetual Trustees dated 16 December 2010;
h)   Report by the Public Guardian dated 9 October 2009–order made 17 July 2009
i)   Email exchanges between Susan McClaren (TPT) and DP

Does DHX have a disability?

The Board assessed the report and annexures received from Dr Andrew Jackson. Dr Jackson noted that DHX was involved in a motor vehicle accident in 1989 and suffers from frontal lobe damage as a result. The Board was satisfied that DHX is a person with a disability within the meaning in sections 3 of the Act and for the purpose of section 20 of the Act.

Does DHX’s disability render him incapable of making reasonable judgments?

Dr Jackson noted that DHX’s disability had been evident for 23 years and has “significant effect” on his ability to make reasonable decisions; that he is “not really” able to make reasonable decisions about where he should live; is “perhaps” able “at times” to understand the nature and effect of medical treatment; and is “unable” to make reasonable decisions about other matters such as relationships, visits by friends or relatives or employment. DHX also acknowledged that he had difficulty making good decisions.
There was no dispute as to the medical evidence regarding DHX’s capacity. Accordingly the Board was satisfied that DHX is incapable, by reason of his frontal lobe damage of making reasonable judgments about his person and circumstances.

Is DHX in need of a Guardian?

DP raised concerns in her application about her son’s living arrangements. She was concerned about him living alone in the property he owns at Launceston and felt that he was at risk while he continued to do so. This property was purchased, together with an adjoining takeaway shop from the proceeds of DHX’s MAIB settlement. DP gave evidence that until approximately February 2012 various members of his family had been living in the property with him but that this was no longer an option due to his deteriorating behaviour. Since then he had been living there alone with support from Family Based Care (FBC) and, although he manages when the support workers are present, he does not make healthy lifestyle choices; is unable (or unwilling) to cook meals or take his medications; and becomes lonely and scared when he is alone. She believes he is not able to keep himself safe; is vulnerable; and often put at risk by the people he visits or the people who visit him. She gave examples of people breaking into his house and taking things and of him allowing a homeless man, with mental health issues to move in overnight. She expressed the view that he needed more constant companionship and support and required a guardian to work with him, and her, to find suitable, safe supported accommodation in a group home or similar arrangement.
DP gave evidence that she had been trying to access advice as to available options for DHX but had been unable to obtain this as, although she had always acted as his guardian, she had not been formally appointed and this was now creating a barrier for her.
David Symons from the Office of the Public Trustee also expressed concern about DHX’s living arrangements. He noted that, since HP and DP had moved out in February 2012, DHX was living alone with no formal care other than four hours per day from FBC which he considered inadequate to meet his needs particularly given his medication regime. Mr Symons also noted that DHX was vulnerable to exploitation by others and on at least one occasion had allowed someone to move in with him. He believed there was a risk to his health through social use of drugs and noncompliance with his medication which he is required to take morning and night.
Mr Symons indicated that, in addition to accommodation issues, the care assistance that DHX was currently receiving from various agencies (eg FBC, TABIS and Fusion) needed to be coordinated. He gave evidence that from an administration point of view the current arrangement with FBC could only be regarded as a short term solution because the cost was prohibitive. He also advised that the potential maintenance costs to the property at Launceston were high and that the administrator needed guidance from a guardian to make sure that all options are considered so that the most cost effective and appropriate package can be put together for DHX
When determining whether a person is in need of a guardian the Board is required by section 20(2) of the Act to consider whether the needs of the person can be met by other means less restrictive of that person’s freedom of decision and action and, under section 20(3), whether the appointment of a guardian would be in the best interests of the person.
DHX was 8 years old at the time of the accident that caused his injury. The Board noted that continuing the status quo would be regarded as less restrictive than the appointment of a guardian, however, it was clear from the evidence presented by the two applicants that there are decisions that need to be made, sooner rather than later, in relation to DHX’s living arrangements; that the informal arrangements previously relied upon are no longer adequate; and that it would therefore be in in DHX’s best interests for a guardian to be appointed with a clear mandate to make these decisions.
The Board was therefore satisfied that there is a need for a guardian to be appointed for DHX in respect of his accommodation (where to live, whether permanently or temporarily) and access to services. The Board was also satisfied that there was a need for the guardian to be able to restrict visitors.

Who should be appointed to the role of guardian?

When determining who should be appointed as a person’s guardian the Board has to be satisfied (section 21(1)) that the person they appoint: will act in the best interests of the proposed represented person; is not in a position where the interests conflict or may conflict with the interests of the proposed represented person; and is a suitable person to act as guardian of the proposed represented person. When determining whether a person is suitable to act as a guardian, the Board must (section 21(2)) take into account: the person’s wishes; the desirability of preserving family relationships; the compatibility of the proposed guardian with the person and with the administrator; and the availability of the proposed guardian to fulfill the requirements of guardianship.
David Symons explained that the reason the PG had been nominated was because the current arrangements were not working for DHX and were not financially sustainable. He expressed a desire to work with whoever was appointed guardian to find the best outcome for DHX in terms of meeting his needs and being affordable but stressed that it was not the role of the Public Trustee as administrator to identify the available options or make decisions as to where DHX should live or what services he should access or who should live with him. He indicated that from recent discussions and email correspondence received from DP he believed she expected him to come up with these solutions.
Mr Symons gave evidence that DP had attempted to work with him to address some of these issues but he reported a high level of frustration that they would get some way down the track with a potential solution only for him to find that it had suddenly been abandoned and they were heading off on another tack. He acknowledged that this was partly to do with DHX “being a bit of a handful at times” but advised that the administrator needed to be presented with available options (rather than be asked to find them) which could then be costed and considered and a collaborative determination made as to which best met DHX’s needs and were affordable. He maintained that this was not occurring and he did not believe it would occur if DP was appointed as guardian.
Mr Symons gave evidence that DHX’s case was extremely complex and complicated further by his funding arrangements and eligibility for certain services. He explained that because of DHX’s MAIB settlement he had not until earlier this year been entitled to receive any payments from Centrelink - initially due to a preclusion period and later because he did not pass the assets test.
Mr Symons gave evidence that because of these complexities he was not able to obtain consistent answers as to which services or supports DHX would able to access or was eligible to receive, even from those within the care community, who are in the business of providing or accessing services for people such as DHX. He expressed the view that he was not confident DP, despite her best intentions and some experience in the sector, would be able to navigate these complexities to the best or in the best interests DHX. He submitted that, rather than attempting what has already been tried and failed, someone, without any prior knowledge of what had been attempted until now, needed to undertake a fact finding mission as to what was available for DHX and make a recommendation to the administrator based on that information.
Lyn Cameron from FBC, endorsed Mr Symons comments regarding the complexity of DHX’s care arrangements. She told the Board that FBC had recognised that DHX needed a case manager and had approached Community Options and been advised that he was not eligible because of his MAIB payment; FBC had subsequently approached Baptcare and been given the same advice. She indicated that in her entire time at FBC she had never been aware of a person receiving a Centrelink payment who had received an MAIB settlement and she was not sure how that impacted on his eligibility or cost.
DP told the Board that she would like to be appointed as DHX’s guardian and she believed that he would want that as well. She said she had experience in the industry and therefore a broad knowledge of the services available, how to access them and what was required. She and her husband both disputed that she would have difficulty navigating the obstacles raised by Mr Symons. DP advised that the only barrier to progress so far was that she was unable to access, or even have discussions with, care providers without a guardianship order. On further questioning it became apparent to the Board that DP had been able to speak with relevant organisations (Gateway, Baptcare, Community Options and Advocacy Tasmania) and that it was not the lack of a guardianship order that was impeding progress but rather DHX’s complex care needs because of alcohol and drug and mental health issues
Although the Board was satisfied that DP would make every effort to act in her son’s best interests and accepted that she has experience working in the disability sector, the undisputed fact is that DHX is currently living in an unacceptable and dangerous situation and has been for some period of time. The Board noted that the various strategies employed by DP to date had been unsuccessful and considered it important that this be addressed as quickly as possible.
The Board recognised that DHX’s circumstances are extremely complicated, as a result of both his complex health issues and his complex funding arrangements and was satisfied that it was these issues, as opposed to the absence of a guardianship order, that had impeded progress in making appropriate decisions or recommendations about DHX’s living arrangements. The Board also recognised that even those who are regarded as experts in the field have been unable to provide consistent advice to the administrator as to what services and supports are available. The Board was therefore not confident, even with the mandate provided by a guardianship order, that DP has the knowledge or expertise to be able to act in DHX’s best interests in making decisions or exploring options for his future accommodation and support for consideration by the Administrator.
In considering DP’s suitability to be appointed guardian the Board is required to take into account the compatibility between her and the current administrator. The Board had copies of correspondence between DP and DHX’s previous administrator which evidenced a progressively worsening relationship between them in relation to the management of DHX’s affairs and culminated in a request by TPT to be relieved of the role and the subsequent appointment of the Public Trustee.
The Board questioned DP about this relationship and her ability to work with DHX’s current administrators. She acknowledged that there had been significant tension between her and TPT but expressed the view that her relationship with his current administrator was “reasonably good” and, although she and David Symons had engaged in “some healthy discussions” she felt she would be able to work well with him if she were appointed as her son’s guardian. The Board noted that the sentiments expressed by DP were not echoed by Mr Symons, who described experiencing significant frustration as a result of the lack of progress and consistency in decision making. Given Mr Symons concerns and the interactions between DP and DHX’s previous administrator the Board was not satisfied that the relationship between DP and the current Administrator would remain compatible if the current administrator did not agree with decisions made by DP.
Other factors to be taken into account in considering DP’s suitability are DHX’s wishes; her compatibility with him and ‘the desirability of preserving existing family relationships’.
The Board noted references in past reports to a breakdown in the relationship between DHX and DP and questioned her as to whether the need to make difficult decisions as his guardian would impact adversely on their relationship. DP acknowledged that there had been some past difficulty and cited the breakdown in this relationship as one of the reasons they had moved out of his property. She indicated that since then the relationship had improved and she did not believe she would have any difficulty making difficult and necessary decisions in DHX’s best interests even if they were contrary to his wishes and did not consider this would impact adversely on her long term relationship with her son.
HP agreed with the position expressed by his wife advising that they had regularly needed to make unpopular decisions and stating that DHX had not harboured any grudges or hard feelings because of this.
It was clear from the evidence presented at hearing that DHX has a caring and committed family who have devoted most of their lives to looking after him since his accident. Despite their best efforts the arrangements that were put in place in the early days are no longer suitable and indeed led to a temporary breakdown in their relationship. The decisions that need to be made for DHX are complex and may involve the sale of his property and his placement in a group home. These may not be things that DHX wants to happen and, if they do not accord with his wishes, have potential once again to cause significant disharmony. The importance of preserving family relationships cannot be underestimated – hence the law requiring this to be one of the factors that must be considered in determining a prospective guardian’s suitability. The Board does not consider it to be in DHX’s best interests to put that relationship at risk.
The Board does not have the same concerns about the Public Guardian’s suitability to be appointed as DHX’s guardian. The Board is confident that the Public Guardian will act independently and in DHX’s best interests. The Public Guardian has the appropriate expertise and skills to liaise with appropriate care providers to identify support packages available to DHX and to work with the Public Trustee to identify the most cost effective and appropriate package can be put together for DHX’s future needs.
In considering DHX’s wishes, while the Board accepted that DHX had expressed a preference for his mother to be appointed his guardian, it did not consider he had a deep enough understanding of that concept or of the role of a guardian for those wishes to be attributed undue weight.

THE ORDER:
The Board orders that:

The Public Guardian be appointed as guardian of the represented person;
That the powers and duties of the guardian are limited to decisions concerning:
i.where the represented person is to live, whether permanently or temporarily
ii.provision of services for the represented person
iii.restriction of visitors to the represented person to such extent ass may be necessary in his best interests.

That the order remains in effect until 19 July 2015

Relevant Legislation

Guardianship and Administration Act 1995
Division 2 - Appointment of guardian

20. 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.

(2) In determining whether or not a person is in need of a guardian, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of that person's freedom of decision and action.
(3) The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.
(4) The Board must not make an order appointing a full guardian unless it is satisfied that an order for limited guardianship would be insufficient to meet the needs of the proposed represented person.
(5) Where the Board makes an order appointing a limited guardian in respect of a person the order to be made is that which is least restrictive of that person's freedom of decision and action as is possible in the circumstances.
(6) Two or more guardians of a person, each with different functions, may be appointed under one or more limited guardianship orders.

21. Persons eligible as guardians
(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.