EKS – Review of Guardianship & Administration Orders
[2018] TASGAB 35
•18 December 2015
GUARDIANSHIP AND ADMINISTRATION BOARD
EKS – Review of Guardianship & Administration Orders
STATEMENT OF REASONS
Before: Elizabeth Clippingdale (Chair)
Virginia Jones
Fred Lester
Review of Guardianship and Administration – accommodation in dispute between parties – recommendation from Public Guardian for Guardianship to continue – conflict between current Administrator and represented person – represented person’s wishes
Guardianship and Administration Act 1995
Background to the Review of Guardianship & Administration Orders
On 18 December 2015, the Guardianship and Administration Board (‘the Board’), after hearing a Review of an Administration Order made on 25 July 2014 and a Review of a Guardianship Order made on 25 July 2014, made Orders for Administration and Guardianship pursuant to Part 4 of the Guardianship and Administration Act 1995 (‘the Act’) in respect of EKS. The Guardianship Order appointed the Public Guardian as EKS’s Guardian and limited the powers and duties of the Guardian to decisions concerning where EKS was to live either permanently or temporarily and to the provision of consent of services being provided at EKS’s home. The Guardianship Order was to remain in effect to 17 December 2018. The Administration Order appointed SMK as EKS’s Administrator. The Administration Order was to remain in effect to 17 December 2018.
Application and Hearing of the Review of the Orders
With the expected expiry of the Orders in paragraph 1 above, both the Administrator SMK and the Public Guardian applied for a Review of the Orders.
The Hearing to review the Guardianship and Administration Orders took place on Friday, 14 December 2018 (‘the Hearing’).
The following persons attended the Hearing:
·EKS, the Represented Person;
· Ms Kylie Hillier, Office of the Public Guardian (by telephone);
· SMK, Administrator and daughter of EKS;
· Mr Duncan Massey, Advocacy Tasmania;
· SS, son of EKS;
· BC, daughter of EKS; and
·Ms Rosemary Birt, Facility Manager, [the Residential Facility]
The Board had the following documents before it:
·Administration Order made by the Board dated 18 December 2015;
·Guardianship Order made by the Board dated 18 December 2015;
·Application for Guardianship by Ms Kylie Hillier, Office of the Public Guardian, dated 3 October 2018;
·Application for Administration by SMK, Administrator, dated 18 October 2018;
·Health Care Professional Report of Dr Gretchen Stone dated 28 September 2018;
·Office of the Public Guardian Report authored by Ms Kylie Hillier dated 7 November 2018;
·Private Administrator’s Report by SMK dated 19 October 2018; and
·Report of Ms Anna Lovitt, Dorset Community Health Social Worker, Tasmanian Health Service, dated 4 December 2018.
As a result of the Hearing the Board was satisfied EKS is a person with a disability and is unable because of her disability to make reasonable judgments in respect of:
(a) her personal circumstances; and
(b) matters relating to all or any part of her estate; and
is in need of an Administrator and a limited Guardian. The full details of the order appear at the end of this Statement of Reasons.
A Statement of Reasons has been requested in relation to the Board’s decision.
Requirements of the Guardianship and Administration Act 1995
At hearings for the review of Guardianship and Administration Orders, the Board needs to determine whether the Orders should continue, be varied, revoked or be allowed to lapse.
In relation to the review of a Guardianship Order, the Board needs to consider the principles of s 6 of the Act and determine whether the requirements in s 20 of the Act are still met. The s 20 matters are that the represented person (EKS):
(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 her person or circumstances; and
(c) is in need of a guardian.
10. In relation to the review of an Administration Order, the Board needs to consider the principles of s 6 of the Act and determine whether the requirements in s 51 of the Act are still met. The s 51 matters are that the represented person (EKS):
(a)is a person with a disability; and
(b)is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of her estate; and
(c)is in need of an administrator.
11. The Board must also balance the principles in s 6 of the Act, which are:
(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.
Is EKS a person with a disability?
In respect of EKS, Dr Gretchen Stone provided a Health Care Professional Report to the Board dated 28 September 2018. Dr Stone reported a doctor/patient relationship of 12 years, that EKS has mild dementia and EKS ‘…generally speaks well but repeats.’ Dr Stone also reported that EKS has ‘…poor insight, hoarding.’ Dr Stone indicated that the conditions are slightly deteriorating and have been evident for four years.
Ms Anna Lovitt, Social Worker with Dorset Community Health, provided a report to the Board dated 4 December 2018. Ms Lovitt’s conclusion, based on her observations and visits with EKS since August 2016, are that she is ‘… of the opinion EKS is capable of making reasonable judgements about her personal circumstances, including her choice to living [sic] independently. I am unable to give informed opinion concerning her abilities to manage specific aspects of her finances.’
Administrator SMK in her report of 19 October 2018 stated, ‘[s]ignificant lapses in her memory have been noted by myself and other members of the family who are in regular conversation with her.’
Further evidence as to recent observations of EKS’s current medical conditions were sought from those present at the Hearing.
SMK advised that EKS was misplacing paperwork in her room including bank statements, and had also on one occasion lost her keys to her room.
SS confirmed his observations of short-term memory loss for his Mother, and gave a recent example concerning the whereabouts of a family member.
There was detailed evidence provided by parties present at the Hearing about EKS’s alleged hoarding, both recently and prior to EKS moving to her current accommodation, including the evidence of EKS. EKS did not accept she was a ‘hoarder’. The evidence included details of the clean-up required at EKS’s house prior to sale, the current condition of EKS’s room at the nursing home, EKS’s purchases for her intended move to independent living, EKS’s hobbies of flower arranging and sewing and the different materials required, the lack of suitable storage at the nursing home for the different materials required for those hobbies, and her relative’s fears for EKS’s health and current medical conditions if EKS moved out of the nursing home where she currently resides.
Given the length of the professional relationship with EKS, the qualifications of Dr Stone and the evidence received from those present at the Hearing that concurred with Dr Stone’s Health Care Professional Report, the Report from Dr Stone was preferred by the Board when considering whether or not EKS is a person with a disability within the meaning of the Act.
The Board is satisfied EKS is a person with a disability within the meaning of the Act, specifically, dementia. The Board did not make a finding in relation to hoarding.
Is EKS incapable by reason of the disability of making reasonable judgments?
In the report of Dr Stone noted above, it was indicated EKS has deficits in impulse control, capacity for new learning and planning and reasoning skills by reason of her disability. Dr Stone noted, ‘[EKS] has an image of how nice it would be to have a unit, and resents the fact that other people are making decisions for her. Her managing skills are not adequate for organising a unit and providing for her own needs – let alone all the tasks involved with setting one up.’ Dr Stone further noted, ‘[EKS] is capable of doing shopping for personal items, but not making a budget, and ‘[s]he can pay bills, but a complete budget would be too much for her.’
In relation to consideration of the nature and effect of medical treatment, Dr Stone noted, ‘[EKS] has always thought that her skills and experience as a community nurse were adequate for medical decisions even when docs [sic] have other opinions’ and indicated that EKS cannot determine the support services she should access.
In relation to the consequences of not appointing an Administrator or a Guardian, Dr Stone stated ‘[EKS] needs that outside support for decision making. She would probably try to rent her own unit, and be ready for readmission within weeks.’
The Board was satisfied EKS is incapable of making reasonable judgments about her person and circumstances.
Is EKS in need of a Guardian?
EKS is a resident at [the Residential Facility]. EKS’s Advocate advised, and EKS confirmed, that she would like to move to independent living and would accept support to do this. Independent living was not supported by Dr Stone’s Report or family members present at the Hearing.
It was clear there were differing opinions as to the issue of accommodation between EKS and her children at the Hearing.
The Deputy Guardian submitted she would like the current Guardianship Order to continue due to the accommodation being an issue, and would support a conversation to consider other accommodation proposals for EKS.
Family members at the Review did not oppose the continuation of the current Guardianship Order.
Dr Stone’s Report supported the continuation of the current Guardianship Order.
The Board determined EKS is in need of a Guardian. The Board determined the Public Guardian would be appointed to continue as EKS’s Guardian limited to decisions where EKS is to live either permanently or temporarily; and to the provision of consent to services being provided for EKS.
Is EKS in need of an Administrator?
EKS has had an Administrator since 2014.
Evidence at the Hearing from Dr Stone (in the form of the Health Care Professional Report), EKS and family members, made it clear EKS’s capacity to make decisions in relation to her estate has not improved.
Evidence from SMK indicated there is a decline in her relationship with her Mother due to her being the Administrator of her mother’s affairs. SMK advised EKS has attempted to ‘catch her out’ and is suspicious of her dealings with EKS’s estate.
SMK advised that she did not believe EKS had sufficient funds to support a change in accommodation. She advised her decision was based on the perceived need to retain substantial funds to clean the new accommodation place once EKS had returned to the nursing home. SMK indicated that she did not believe it was in EKS’s bests interests to move from the nursing home. Although SMK believed she was acting in her Mother’s best interests, it was clear that a decision by her had already been made and she would not be open to any conversation with the Public Guardian to discuss financial arrangements for any other accommodation possibilities.
EKS was invited to state her views in relation to the possible appointment of an Administrator. EKS suggested her brother, ND, be appointed as Administrator. ND was not present at the Hearing. The Board was therefore unable to ascertain if ND was eligible to be appointed as EKS’s Administrator as per s 54 of the Act.
The Board determined EKS is in need of an Administrator. Given the conflict between the current Administrator SMK and EKS, that SMK was not open to a discussion to consider funding for other accommodation options for EKS, and that EKS no longer wished SMK to continue in the role of Administrator, the Board determined the Public Trustee would be appointed as EKS’s Administrator in place of SMK.
Conclusion
After hearing Reviews of a Guardianship Order and an Administration Order in respect of EKS:
(1)The Board was satisfied that EKS:
· 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.
(2)The Board was satisfied that EKS:
· is a person with a disability, and
· is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of her estate; and
· is in need of an Administrator.
THE BOARD ORDERS
That the Public Guardian continue as EKS’s Guardian.
That the powers and duties of the Guardian are limited to decisions concerning:
i. where EKS is to live either permanently or temporarily; and
ii. provision of consent to services being provided for EKS.
That the Public Trustee be appointed as EKS’s Administrator in place of SMK.
That the powers and duties of the Administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That the Order remains in effect to 13 December 2021
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