DX (Guardianship and Administration)
[2019] TASGAB 4
•19 February 2019
CITATION: | DX (Guardianship and Administration) [2019] TASGAB 4 |
HEARING DATE(S): | 30 November 2018, 19 February 2019 |
DATE OF ORDERS: | 19 February 2019 |
DATE OF STATEMENT OF REASONS: | 15 March 2019 |
BOARD: | Ms Lindi Wall |
APPLICATION | Guardianship and Administration |
CATCHWORDS: | Guardianship and Administration – interim orders on adjournment – disputed medical evidence – Section 28 – Section 6 principles |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas) |
CASES CITED: |
Statement of Reasons
Background
The proposed represented person, DX, is a 64 year old single woman who has been living alone in Hobart. She has an adult son and two sisters interstate with whom she is not close.
On 1 June 2018 the Board appointed the Public Trustee as her administrator and the Public Guardian as Guardian limited to accommodation decisions. Those orders expired on 1 December 2018. In applying for statutory review of those orders, both the Public Guardian and the Public Trustee sought the continuation of orders on the same terms. At the hearing of these applications on 30 November 2018, DX opposed the continuation of orders and sought an adjournment of the applications to enable her to obtain legal advice.
On 30 November the Board granted the adjournment and, based on the existing medical evidence, made interim orders in the same terms as the existing orders.
In the absence of any communication from DX or her solicitor, the applications were relisted for hearing by the Board on 19 February 2019. The following attended the hearing:
· Mr David Cocker (Legal Aid Commission, representing DX)
· Ms Maddie Russell (Office of the Public Guardian, applicant)
· Ms Christie Grosse and Ms Emma Burt-Stone (Public Trustee, applicant)
· Mr Samuel Camp (Intern/observer - Guardianship and Administration Board)
· On this occasion DX did not attend the hearing. Mr Cocker advised that she had informed him merely that she was unable to attend.
The following documents were before the Board:
· Orders and applications
· Correspondence from the Office of the Public Guardian and Public Trustee
· Health Care Professional Report 11/5/18 Dr Anca Corbu (locum psychiatrist RHH)
· Health Care Professional Report 2/11/17 Dr Philippa Cannan (psychologist RHH)
· Letter from RHH 11/5/18 with medical notes entered by Dr Corbu
· OPG Reports 1/11/18 and 4/2/19
· Public Trustee Report 31/10/18
· email submission from KC (sister)
· Board Notes of decision 30/11/18
Is DX a person with a disability? (Section 20(1)a and 512(1)a)
The HCPR by Dr Cannan was provided at a time in late 2017 when DX was detained under the Mental Health Act 2013 for two months of treatment for bipolar affective disorder and obsessive compulsive disorder. At that time she was homeless and the report was in support of an application by the RHH for the appointment of a limited guardian and administrator for discharge decisions. On 11/5/18 Dr Corbu assessed DX and, with additional reference to the medical records, provided a diagnosis of bipolar affective disorder, OCD (obsessive compulsive disorder) and episodes of psychosis. She advised that this condition was static and, with regard to prognosis, advised that DX ‘presents a picture of continuing mental illness that will need lifelong treatment’.
In 2017 and 2018 DX disputed any suggestion that she suffered from mental illness even during her hospitalisation. However she did engage with mental health services and complied with medication even after discharge, which suggests some acknowledgement of her condition. According to Dr Corbu, DX was aware that the medication was to treat a mood disorder and to prevent recurrence of psychosis but did not agree that she suffered from this. This contradiction was said to be indicative of her lack of insight into her poor mental health. DX continued throughout the hearing process to dispute the diagnosis of mental illness as well as many of the factual matters reported by clinicians; particularly about hoarding behaviour and aberrant spending on religious books. She did not, however, take any steps to obtain or co-operate in obtaining, any medical evidence to contradict that with which she disagreed.
The Public Trustee and the Public Guardian both gave evidence that they had attempted to obtain new Health Care Professional Reports, but DX had cancelled or failed to attend several appointments made by her GP which prevented this.
The Board was satisfied that DX continues to suffer from the mental illness diagnosed in the reports referred to, and that she is a person with a disability.
Is DX incapable of making reasonable decisions about her person and circumstances and about her estate? Section 20(1)b and 512(1)b
Both medical reports attest to the severe effect of DX’s disability on her planning and reasoning skills. In 2017 this was exemplified by the observation that it took her a number of hours to leave the ward – and after discharge, her unit – to carry out tasks. She would then return sometimes without having done the task. Her difficulty in making any decisions was said to put her quality of life at risk. Dr Cannan’s report advised that DX was unable independently to organise realistic accommodation for herself yet at the same time refused the services necessary to assist her to do this – on the basis that she could do this independently.
Dr Cannan was of the opinion that DX in 2017 was unable, as a result of her disability, to manage either day to day or major financial decisions. In 2018, Dr Corbu found her capacity for financial capacity difficult to assess because of what she described as her suspicious, guarded and negative attitude to the support she was then receiving from the Public Trustee. She noted again the propensity to spend large sums of money on religious books (an assertion denied by DX). She determined nevertheless that DX could manage her day to day finances but not major financial or legal decisions.
The evidence from the Public Guardian at the hearing, on the basis of her experience during the period of the interim orders, was consistent with the medical assessment of disorganisation and lack of planning and reasoning capacity about lifestyle decisions. DX had proved incapable of making any decisions regarding accommodation, had refused support services and cancelled medical appointments, refusing to engage with the medical profession. She had not engaged with housing support services despite her wish to move to alternative accommodation. The Public Guardian had personally observed the hoarding behaviour at her home, which DX strongly denied. The behaviour described by the doctors as demonstrating incapacity to make reasonable judgements was thus still in evidence.
Mr Cocker agreed that, given her need – and wish - to move accommodation, his client would have to put in housing applications. He was unable to explain why she had not done so. Similarly he was unable to explain why she had not made an appointment to see him for legal advice until the last minute after she received notice of the hearing, even though she had requested an adjournment for this purpose. There was thus no opportunity for Mr Cocker to organise neuropsychological testing which he would have preferred her to do, especially as her Treatment Order had lapsed.
Since the Public Trustee had administered her money, there was no further evidence specifically about her ability to make financial decisions as there had been little contact. However, there was no evidence that the lack of planning and reasoning skills and disorganisation evident in relation to personal decision making did not persist (as set out in the earlier medical evidence) in relation to this area of decision making also.
On the available evidence the Board was satisfied the DX is incapable of making reasonable judgments about her person and circumstances and her financial situation.
Is DX in need of a guardian and an administrator? Section 20(1)c and 51(1)c
In their applications and at the hearing the Public Guardian and the Public Trustee made strong submissions that the need for orders continued. The Public Guardian advocated for the variation of the current orders to add orders pursuant to Section 28 of the Guardianship and Administration Act 1995 (the Act) and for decision making about NDIS and support services. The Public Trustee argued for the continuation of orders on the existing terms.
Mr Cocker submitted that DX was opposed to any orders because she believes that she does not have a disability and therefore that she should not receive any state funding. She was particularly opposed to any extension of the orders, especially a section 28 order which she instructed him was not needed.
The Public Guardian advised that DX had proved unable to make decisions or act upon decisions made. The Public Guardian had made the decision that she move out of her deceased father’s house, which was to be sold pursuant to his will, into temporary rental accommodation provided by a sister. She did not wish to move out, did not wish to move to the rental unit but was unable to engage with housing services to facilitate an alternative. The Public Guardian said there was a clear need for realistic and urgent accommodation decisions which were additionally complicated by the complexity of family involvement and the financial consequences of the father’s will which would impact on accommodation options. Because of the rigid thinking she demonstrated, DX was unlikely to agree to any accommodation option put to her. Her sister who owned the unit was in a position of control over her and she was vulnerable to eviction. Without an order there was a risk of homelessness, a situation that had eventuated previously. The Public Guardian believed an order provided the best chance of negotiating for her the least distressing accommodation opportunity.
Mr Cocker said DX wanted to move from the unit and knew that she would need to put in applications in order to move to a place that better fitted her requirements. He was unable to explain why she had not done so. He was unaware that she had failed to engage with Housing Services. He had understood that she had been getting help and was unaware until he learned from the Public Guardian that Mycare had closed the case because his client was not engaging.
The Public Guardian urged the need for section 28 orders as DX had refused to follow the decision to move from her father’s house to the unit. After she was required to move with her belongings – a lengthy process - she returned to her father’s house and refused to leave. She only did so voluntarily when advised that, pursuant to the section 28 order, the police had been called. The Public Guardian was of the opinion that because DX would not find any accommodation suitable, decisions made for her would unenforceable without section 28 orders.
The Guardian informed the Board that DX had become eligible for NDIS but must apply before April when she turns 65 or risk losing that opportunity. She felt an application was in DX’s best interests because of her mental health needs and consistency of support, rather than relying on aged care services. My Aged Care would be less flexible and would come at a cost to her. DX would not, however, agree to applying for NDIS – or indeed any services - in the absence of a Guardianship Order, because she did not feel it was right to apply for state funding when she did not accept she had a disability.
The Public Trustee had been working with the Public Guardian in facilitating accommodation decisions by signing the tenancy agreement and paying the bond in circumstances where DX refused to accept the move. A new lease will have to be signed as soon as a new accommodation decision is made. The Testates Family Maintenance action, which she now opposes, is intended to seek an outcome which will provide financially for better accommodation options. A small interim payment received under her father’s will has been secured.
Mr Cocker noted that administration orders were opposed, but if orders were to be made they should exclude the pension and day to day finances. The Trustee offered no evidence that she was unable to budget or manage her day to day finances. She had adequately managed her allowance (after payment by the Trustee of all bills) without getting into debt. The Guardian supported this proposal as DX found the current order demeaning and it was no longer the least restrictive option.
With respect, the Board found that DX’s view of her own competence was at odds with the medical evidence, the medical history and the evidence of the Guardian and the Administrator who have observed her lack of ability to make decisions necessary for her own personal and financial wellbeing. The Board is satisfied that she is in need of an Administrator and a Guardian. The Administration order will be limited in that it will exclude the management of DX’s Commonwealth Bank of Australia access account which she will manage herself. The Guardianship Order will be limited to accommodation; an order under section 28 for the purpose of implementing accommodation decisions; and decisions about NDIS and support services.
Both the Guardian and the Administrator urged the Board to make lengthy orders to allow for a co-ordinated approach to ensuring DX is able to obtain accommodation and a support package which she finds acceptable and suited to her needs. This will inevitably be influenced by the outcome of the TFM action which is likely to be a lengthy process. The Board accepted their submissions.
The only nominees for appointment were the Public Guardian and the Public Trustee.
THE BOARD ORDERED:
GUARDIANSHIP
That the Public Guardian continue 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 either permanently or temporarily; and
ii.providing consent to the provision of support services to the Represented Person including advocating and/or making any decisions on their behalf in respect of any NDIS plan development, plan implementation and/or plan review or appeal.
Pursuant to section 28 of the Act, if the Guardian has reasonable grounds to believe that the Represented Person is likely to suffer damage to their physical, emotional or mental health or wellbeing unless immediate action is taken, the Guardian and the Commissioner of Police (or his delegate) and/or the Secretary of the Department of Health and Human Services (or his delegate) may take the following measures or actions to ensure that the Represented Person complies with any decision of the Guardian in the exercise of the powers and duties conferred by the Order:
i.facilitate transport of the Represented Person to the place of residence determined by the Guardian;
ii.keep the Represented Person at the place of residence determined by the Guardian from time to time;
iii.return the Represented Person to that place of residence should they leave it; and
iv.to use such reasonable force as is necessary to effect the Guardian’s purpose.
That the Order remain in effect until 18 February 2022.
ADMINISTRATION
That the Public Trustee continue as the Represented Person’s Administrator
That the powers and duties of the Administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995, subject to clause 3 below.
That the Commonweath Bank of Australia access account is to be managed by the Represented Person
That the order remain in effect until 18 February 2022.
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