DQH (Guardianship)

[2013] TASGAB 25

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

DQH – Application for appointment of a guardian and administrator by BH

Neutral citation: DQH (Guardianship) [2013] TASGAB 25

Anita Smith (President)
Elizabeth Love (Member)
Carolyn Wallace (Member)

28 November 2013

Guardianship – ‘in need of a guardian’ – applicant had established a robust care regime, so need for a guardian not established.
Guardianship and Administration Act 1995 s. 20, 21

1. On 9 October 2013 the Board received an application from BH seeking appointment as guardian for his wife of 39 years, DQH.  DQH is a 77 year old ex-nurse with two sons to a prior marriage, NM and HM. BH sought appointment as DQH’s guardian.  An application for appointment of an administrator was withdrawn at the hearing because all DQH’s assets are in joint names with her husband and he does not need the additional authority as administrator to manage her affairs. 

2. Before appointing a guardian, the Board must be satisfied that DQH is a person with a disability, that by reason of her disability she is incapable of making reasonable judgments about her person and circumstances and that she is in need of a guardian.[1]  If satisfied of each of those tests, the Board would assess whether the proposed guardian meets the statutory requisites.[2] 

   [1] Section 20 Guardianship and Administration Act 1995

   [2] Section 21 Guardianship and Administration Act 1995

3. On 15 August 2013 the Board made an emergency guardianship order appointing the Public Guardian for a period of 28 days.   At that time, BH was hospitalized for treatment of a medical condition.  In preparation for his hospitalization, he had admitted DQH to respite care at the XXXX.  Staff from the XXXX transferred her to the Royal Hobart Hospital (RHH) on 14 August 2013 when she became aggressive and displayed violent episodes of behaviour.  The following day, RHH Social Work Service applied for an emergency guardianship order and subsequently used the authority of the Public Guardian (under that order) to transfer her to the Roy Fagan Centre. 

4. When BH’s treatment had concluded he sought to have DQH discharged from the Roy Fagan Centre, but was delayed in this for longer than he thought appropriate.  This experience left him feeling powerless and unable to protect his wife against these distressing experiences.  The applicant was motivated by this experience to apply for appointment as his wife’s guardian. 

5. The application was heard on 22 November 2013.  The following persons attended the hearing (with reference to their relationship to DQH):

   BH – Applicant and husband
   NM – son
   Donna Oakford – Community Options Case Manager
   Yvonne Golder – Solicitor, Legal Aid Commission
   Jo-anne McGuinness – Representative, Public Guardian

6. A report by BS confirmed that DQH has Alzheimer’s dementia and that, as a result, she is incapable of making reasonable judgments about where she should live temporarily or permanently.  Ms. Golder said that DQH rejects the diagnosis, but accepts that she experiences memory loss.  There was no other objection to the contents of the report.  The Board was satisfied that DQH is a person with a disability and is unable by reason of that disability of making reasonable decisions about where she lives.

7. As stated above, BH sought appointment as a guardian to avoid the situation where he cannot control his wife’s admission or discharge from a care facility.  In examining the question of whether DQH is in need of a guardian, the Board examined the likelihood of this set of circumstances occurring again.  The following issues emerged from the evidence:

(i)BH’s medical treatment was successful and it is unlikely he will need re-admission.

(ii)Since discharge from the Roy Fagan Centre, a number of significant changes have occurred in BH and DQH’s care regime, including:

a.   DQH is now prescribed Risperidone BD for her aggression, which has reduced her night disturbances. 

b.   BH and DQH are familiarising themselves with the XXXX.  DQH attends Mondays, Wednesdays and Fridays between 10am and 4.30pm and they attend together on Sundays for lunch. 

c.   DQH has Community Options Case Management. 

d.   It has been agreed that if DQH needs future respite, it will need to be in secure care and, as they live next door to XXXX, this may be an appropriate facility for that to occur.

e.   DQH will be receiving personal care assistance. 

1. The Board was impressed that, following a distressing admission to the Roy Fagan Centre, BH (with the assistance of Community Options) has implemented a comprehensive regime that gently familiarises DQH with carers other than BH.  This has reduced some of the burden on BH and he has more support as a carer than previously.  The Board considered that these factors were protective to DQH and reduced the likelihood that care arrangements will break down again to the extent that they did upon admission to the XXXX.  The system of care for DQH is now more robust as a result of these changes. 

2. While the Board cannot offer any guarantees that DQH might not again need the services of the Roy Fagan Centre (which is usually facilitated by an emergency guardianship order), it does consider that planning towards future secure respite at XXXX would be the best measure to avoid that occurring again. 

3. DQH’s solicitor, Donna Oakford and BH were all enthusiastic for his appointment as a guardian.  However, the Board considered that BH has been successful in eliminating, as far as possible, a recurrence of the unfortunate events following admission to the XXXX and it is unlikely that those circumstances will recur.  Therefore there is no need for a guardian. 

4. The Board dismissed the application.

Anita Smith  Elizabeth Love  Carolyn Wallace
PRESIDENT  MEMBER  MEMBER