DKE (Guardianship and Administration)

[2012] TASGAB 36

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

DKE – Application for appointment of a guardian and administrator by NE

DKE (Guardianship and Administration) [2012] TASGAB 36

REASONS FOR DECISION

Anita Smith (President)

Date of hearing: 1 November 2012

Guardianship – need for a guardian arose due to conflict between parents – eligibility of father as proposed guardian – conflict of interests

Guardianship and Administration Act 1995 s. 20, 51

1. DKE is a 27 year old woman who has an acquired brain injury.  She lives with her father, NE, who is her main carer. On 17 September 2012 the Board received an application for the appointment of NE as guardian and administrator for DKE.  DKE’s parents separated relatively recently and the application arose because they have been unable to mutually agree to certain decisions about her. 

2. In assessing the application pursuant to sections 20 and 51 of the Guardianship and Administration Act 1995 (the Act), the Board must enquire as to whether:

   (a)DKE is a person with a disability,

   (b)Her disability renders her incapable of making reasonable judgments about her person and circumstances or her estate,

   (c)Whether she is in need of a guardian and administrator, and

   (d)The eligibility of any nominees for appointment as guardian and administrator.

3. The Board convened a hearing on 1 November 2012 at which the following people attended:

   DKE – proposed represented person
   NE – Applicant and father
   DE – mother
   TS – DE’s legal representative
   Ms. Krisha Ward – Oak Tasmania Day Service provider
   Ms. Moira McPherson – Oak Tasmania Day Service provider
   Mr. Michael Condon – Office of the Public Guardian
   Mr. James Neilsen – Public Trustee
   Ms. Elizabeth Dalgleish – GAB Investigator

4. The Board had the following documents available to it prior to the hearing:

   Application completed by NE
   Health Care Professional Report completed by Dr. McArdle
   Investigator’s report dated 26 October 2012

   At the hearing, NE tabled the following additional documents:

   Income statements for NE and DKE from Centrelink dated 31 October 2012
   Report by Eastern Health dated 22 October 2012
   Report by Dr. Jane Sheedy dated 24 October 2012

5. Evidence from Dr. McArdle that, by reason of her acquired brain injury, DKE experiences global deficits in decision making and communication was uncontested at the hearing. Therefore the Board accepted Dr. McArdle’s report as evidence supporting a finding, pursuant to sections 20(1)(a) and (b) and 51(1)(a) and (b) of the Act, that DKE has a disability that renders her incapable of making reasonable judgments about her person and circumstances and her estate. The major issues for determination at the hearing were whether DKE is in need of a guardian and/or an administrator and the eligibility of the applicant for appointment.

Is DKE in need of a guardian?

1. The applicant contended that he needed appointment as a guardian so that he could have clarity around decision making on DKE’s behalf.  He mentioned two particular areas of concern, being (i) the ability to give directions about with whom she could leave day care at Oak Services and (ii) instructing a lawyer on her behalf in legal proceedings. 

2. The Board learned, however that there has never been a difficulty with the wrong person calling to collect DKE from day care and, if doubt arose, Oak staff have contact details for both DKE’s parents, her sister and her grandparents, so the likelihood of this becoming an issue was very slim.  With respect to the second issue, there are no legal proceedings on foot for DKE and none are anticipated.  The Board was not satisfied that these matters established a need for DKE to have a guardian.

3. Following discussion at the hearing, the Board was satisfied that:

   i.The applicant is considering moving to XXXX with DKE if the matrimonial home is sold to meet requirements of the Family Law proceedings between DKE’s parents.  He considered that living in XXXX with his son would be more affordable than present arrangements in Tasmania.  A potential move to XXXX is strongly opposed by her mother.  DKE’s mother stated that if the applicant moved to XXXX, she would rearrange her work schedule and become DKE’s main carer here in Tasmania. 

   ii.DKE has recently menstruated and this is unusual.  The applicant considered that she may need medical treatment to control bleeding and has considered obtaining an implant to assist in menstrual management.  The Board considered that such a decision should be made taking into account both parents’ views and from the perspective of DKE’s best interests, not the convenience of a carer.

   iii.Following a holiday that DKE and her father took to XXXX from September to late October 2012, visits to her mother’s house had ceased and her mother sought resumption of the pre-holiday visiting schedule which has not occurred.  Communication between the parents about this issue appeared quite tense. 

4. These issues demonstrated to the Board that DKE is in need of a guardian with respect to the issues outlined above. 

Is DKE in need of an administrator?

1. The applicant was unable to demonstrate any present need that DKE has for an administrator.  He receives DKE’s pension as nominee and all of their joint income is expended each fortnight on mortgage payments and household expenses.  He suggested that he should be appointed to reduce the chance of him being accused of doing the wrong thing with DKE’s money.  This does not establish that DKE is in need of an administrator. 

2. If the matrimonial home needs to be sold to meet the outcomes of Family Law proceedings between DKE’s parents, then DKE may be in need of an administrator at that point.  The applicant discussed a reassessment of his income due to the separation from his wife, but this is a Centrelink matter and does not impact on DKE’s need for an administrator.  At present, the Centrelink nominee arrangements are suitable for DKE’s needs without the need for an administrator.   If her circumstances change a fresh application may be made for the appointment of an administrator.

Is the applicant eligible for appointment as DKE’s guardian?

1. The Board did not consider the applicant as eligible for appointment as DKE’s guardian for the following reasons:

   i.He has a financial interest in where DKE shall live permanently because such a decision will impact on whether or not he receives a carer’s allowance.   If a guardian decided she should move to XXXX with him, he would keep his allowance, but if a guardian declined to make that decision and DKE remains in Tasmania after the applicant moved to XXXX, he would lose his carer’s allowance. 

   ii.He is incapable of making an arm’s-length decision about the resumption of visiting arrangements between DKE and her mother.  There is a demonstrable level of tension between DKE’s parents and it would not be possible for the applicant to stand aside from the Family Law proceedings and marriage breakdown to independently determine whether a visiting schedule would be in DKE’s best interests.

   iii.He has prior convictions for indecent exposure and assault. The conviction for assault arose from a situation of domestic violence against DKE’s mother and resulted in imprisonment for one month.  While there was no suggestion that this history has affected DKE’s best interests, the Board considered it a relevant but not major factor in the applicant’s ineligibility for appointment.  The conflicts of interest were a greater factor. 

2. In the circumstances, the Board considered that the appointment of the Public Guardian as DKE’s limited guardian would best meet DKE’s best interests.

Post Script:

14. On 6 November 2012, the applicant sought a statement of reasons for the Board’s decision pursuant to section 74 of the Act.  When the Board prepared the statement of reasons, it discovered that it had inadvertently included a standard clause relating to the guardian’s power pursuant to section 25(2)(d) of the Act instead of the broader terms as announced at the time of making the decision.  Accordingly, on 5 December 2012, before these reasons were settled, paragraph 2(iii) of this order was amended pursuant to clause 5, Schedule 2 of the Act due to a clerical mistake arising from an accidental slip or omission.  The terms of the order appearing below are the amended terms. 

Conclusion:
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 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;

   1. consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment.;
   2. where and with whom the represented person is to live, whether permanently or temporarily; and
   3. who, when and with whom the represented person visits.

3. That the order remains in effect to 31 October 2015.

AND FURTHER, the Board being satisfied that there is no need for the appointment of an administrator, the application for administration is dismissed.

Anita Smith
CHAIRMAN