EN (Guardianship and Administration)
[2004] TASGAB 1
•6 May 2004
GUARDIANSHIP AND ADMINISTRATION BOARD
DEVONPORT
MR E.N., on the applications of MR E.X.N, DISABILITY SERVICES; MR M.N.; MS S.N.
Neutral Citation: EN (Guardianship and Administration) [2004] TASGAB 1
REASONS FOR DECISION
Ruth Hanson (Chair)
Melanie Bartlett (Board member)
Cath Wilding (Board member)
6 May 2004
Guardianship – incapacity – breakdown of relationship between person’s family and staff of the group home where he lived – least restrictive alternative – medical condition and fitness – role of a guardian
Administration – lack of recognition of person having assets and money separate to family – suitability of administrator
Guardianship and Administration Act 1995, ss 19, 20, 51, 54
Pursuant to section 19(1) and section 50(1) of the Guardianship and Administration Act 1995 (“the Act”) the Applicant, Mr E.X.N, a Service Coordinator for Disability Services (DS) in the Department of Health and Human Services applied to the Guardianship and Administration Board (“the Board”) for the appointment of a guardian and an administrator for Mr E.N.. This application was lodged with the Board on 16 January 2003. The Public Guardian was indicated as proposed guardian. No suggestion was indicated for a proposed administrator.
The application was partly heard on 16 May 2003 and reconvened on 20 June 2003. On 20 June a hearing did not proceed as parties indicated their preference to resolve matters by negotiation. When the Board was eventually notified that negotiations had failed the application was set for a fresh hearing on 6 May 2004.
Additional applications, lodged on 12 March 2004 by Mr M.N. under section 19(1) of the Act for appointment as guardian, and 24 March 2004 from Ms S.N. under section 50(1) of the Act for appointment as administrator, were also considered during the sitting of 6 May 2004. Counsel represented Mr E.N.’s family members in all hearings.
Mr E.N. is a 56 year old single man who has an intellectual disability and cerebral palsy. He lived with his family, cared for by his mother, until he was 50 years of age in 1998. At that time, due to his mother’s advancing age, the family accepted a placement for him in a group home. The following year, 1999, Mr E.N. was diagnosed with a rare blood condition, the effects of which were initially managed medically through the insertion of a fistula into his arm and regular blood letting but which is now controlled through with diet and exercise.
Mr E.N. lives with a small number of other residents in a group home in Northern Tasmania. He attends a Day Centre Monday to Friday each week. Most weekends he spends with his family. His mother Mrs W.N., brother Mr M.N. and sister Ms S.N. live at the family home. His brother Mr K.N. lives interstate, maintaining close contact with other family members and visiting periodically. Another brother, Mr B.N., also resides interstate.
The Board was supplied with the following documents:
Applications:
·Application for Guardianship and Administration from Mr E.X.N dated 16 January 2003
·Application for Guardianship from Mr M.N. dated 12 March 2004
·Application for Administration from Ms S.N. dated 24 March 2004
Correspondence to the Board from:
§Mr K.N. dated 27 April 2003
§Mr B.N. dated 29 April 2003
§Dr MacGinley dated 29 April 2003
§Group Home Manager dated 13 May 2003
§Dr Beamish dated 5 May 2002 (sic)
§Dr MacGinley dated 28 May 2003
§Group Home Manager dated 10 June 2003
§Families Advocating for Quality Services, dated 19 June 2003
§Ms O.K., Respite Services, dated 19 June 2003
§ND, Disability Services dated 5 January 2004
§Group Home Manager dated 6 January 2004
§Chrissie Jamieson, Advocacy Tasmania, dated 6 February 2004
Other Correspondence, Reports and Submissions Before the Board:
·Physiotherapy Assessment by Department of Health and Human Services dated 27 November 2002
·Copy of letter from Mrs W.N. to Mr E.X.N and ND dated 10 June 2003
·Letter from Disability Services to the “N” family’s Solicitor dated 28 May 2003
·Health Care Professional Report completed by Matthew Spicer, Psychologist
·Investigation and Liaison Officer (ILO) Report dated 30 April 2003
·Summary of Argument by “N” family’s counsel dated 9 May 2003
·Comments regarding the ILO report from Mrs W.N. dated 20 August 2003
·Document entitled “Second Submission” (undated) from “N” family
·Document entitled “Third Submission”, dated 29 April 2004 which was a copy of the Second Submission, with “attachments which were accidentally left out of second submission”, and
·A joint submission from Disability Services and the Group Home, received at 6 May 2004 sitting and comprising:
· a covering letter (undated),
· a copy of “Protocol for Coordinating and Disseminating Health Care Information Relating to Mr E.N.” dated 11 August 2003
· “Terms of Agreement as to Protocol for Financial Affairs for Mr E.N.” dated 11 August 2003, each containing the signatures of the Group Home Manager and ND, with space for a third signature (Mrs W.N.).
Mr E.N.’s family members opposed the application by Mr E.X.N. There was, however, no dispute by any of the applicants about the existence of a disability or that the disability led to an incapacity to make reasonable judgements in respect to his person or financial circumstances.
The Board found on the basis of the information provided to it that for the purposes of sections 20 and 51 of the Act, Mr E.N. is a person with a disability and is unable by reason of his disability to make reasonable judgments in respect of all or any matters in respect of his person or circumstances or all or any part of his estate.
The person’s wishes
Mr E.N. is unable to articulate his wishes. Family members stated they were usually able to understand indications from Mr E.N.. The report from the Board’s Investigation and Liaison Officer (ILO) stated she had visited Mr E.N. at Day Centre where he appeared to be enjoying his activity. His demeanour and activity during unannounced visits to both the day centre and the group home by his advocate, Chrissie Jamieson of Advocacy Tasmania, lead her to believe that he is well-cared for and happy in both places. Mr E.N. was not present at the hearing on 6 May 2004 because it was reported that he experienced distress in attending the first hearing.
Mr E.N.’s wishes for the purposes of section 6(c) and 21(2)(a) were unable to be ascertained.
The history of the applications
The initial application was made following a protracted period of time during which Mr E.N.’s family and his residential care providers appear to have become increasingly estranged. The family believed the residential service was failing to follow regimes as directed by Mr E.N.’s medical specialist for the management and control of his blood condition and which had been advised to the group home staff by and through the family. The family also believed that service was seeking to control Mr E.N.’s finances.
Group home staff felt compromised in its ability to properly meet its duty of care because of the unwillingness of the family to enable carers to have direct dialogue with Mr E.N.’s doctors. It experienced frustration and difficulty due to the lack of acceptance by Mr E.N.’s family of the financial structure and commitments of the organisation in providing Mr E.N. with board, lodging and activities.
The Group Home staff were also concerned at the family’s lack of any form of acknowledged ownership by Mr E.N. of his finances. His pension income was lodged into an account in joint names with his mother, Mrs W.N., and there was no regular allocation from these funds for Mr E.N.’s use for discretionary incidental or personal spending.
Mr E.N.’s service co-ordination organisation, Disability Services (DS), as well as Mr E.N.’s advocate, made a number of attempts to mediate between the parties. Due to lack of success in achieving a level of partnership between the parties, Mr E.N.’s service co-ordinator, Mr E.X.N, made the initial application to the Board on behalf of the DS.
Following discussion at the 16 May 2003 hearing, an adjournment was granted for discussion between the parties to resolve the issues of conflict regarding Mr E.N.’s care needs. No agreement had been achieved at the resumption of the hearing on 20 July 2003, but at the request of Disability Services a further adjournment was granted for the parties to work together to develop agreed protocols for Mr E.N.’s care.
From copies of documentation provided to the Board by the family, the relationship between Mr E.N.’s family and the Group Home appears to have further deteriorated some time following the second adjournment. In January 2004, wrote to the Board advising there had been no progress in reaching cooperation between the parties and requesting that the initial application be considered.
Prior to the third hearing, the Board received a further application for appointment as guardian from Mr E.N.’s brother, Mr M.N., and a further application from his sister, Ms S.N., for appointment as administrator.
The sittings of May and June 2003 had heard from all parties the concerns and grievances held in relation to Mr E.N.’s care. All documentation submitted to the Board relating to these matters had been read by the new Division of the Board appointed for the third sitting. Parties were advised at the May 2004 sitting that it was not the role of the Board to make determinations or findings regarding individual allegations or to resolve disputes between the parties. Regardless of what has led to the breakdown of trust between Mr E.N.’s family and service providers, it is the role of the Board to determine whether there is need for the appointment of a guardian and/or an administrator, and if so, the most suitable appointment/s.
The evidence relating to need for a guardian
The applicant, Mr E.X.N., submitted that Mr E.N. required a guardian to enable caregivers to have direct access to medical information and advice for the optimum management of his blood condition through diet and exercise regimes. It was also important to be able to provide information relating to his diet and activities direct to Mr E.N.’s doctors.
ND, manager of Disability Services, stated that Mr E.N.’s family felt that the doctor’s recommendations were not being implemented. Staff believed the recommendations were being followed, so would have liked more specific information. The family insisted that the Group Home staff follow to the letter the instructions given by the medical specialist for his exercise regime, regardless of, for example, bad weather, or Mr E.N. feeling very tired. The family refused permission for the Group Home staff to liaise directly with Mr E.N.’s doctors and specialist regarding potential substitute activities.
Concerted efforts and attempts to negotiate agreements and protocols by the Group Home, Disability Services and Mr E.N.’s advocate with Mr E.N.’s family members and later with the solicitor for Mr E.N.’s family, as directed by the Board at the previous hearing, have not had any positive results. The Group Home Manager said that he believed verbal agreement was reached on occasion, but not formalised by any family member signing the written protocol. He stated this was critical to the Group Home. It contained the permission for the Group Home to make contact with Mr E.N.’s doctors and he could not understand why it had not been signed.
The applicant Mr M.N. submitted that his appointment as guardian would formalise the arrangements that have been in place since Mr E.N. turned 18 and permit the family to continue to make decisions about his medical treatment and negotiate his living arrangements and the standard of care provided.
Mr E.N. and his sister Ms S.N. were diagnosed with a rare blood condition at the same time. It had taken considerable effort from the family to find a doctor prepared to treat Mr E.N. following his diagnosis. This had made the family wary of the attitude of others to Mr E.N.’s care and it was submitted that it was in his best interests that the family continues to manage his medical and dental issues. In seeking appointment of Mr M.N. on behalf of the family as guardian, counsel Roland Browne outlined the family’s concern due to the risk of cardiac arrest from the presence of the fistula in Mr E.N.’s arm.
The family also disputed that the Group Home staff needed more detail regarding Mr E.N.’s care regime than had been provided to them by the family in a letter from Mr E.N.’s specialist. The specialist had also confirmed in a letter to the Board in May 2003 that he believed the family had seemed to understand what is required in his conversations with them.
The Board’s view was that the applicants had demonstrated very clearly the inability to reach a co-operative approach to what is, in effect, a shared care arrangement for Mr E.N.. The Board took the view that this is not in the best interests of Mr E.N., who usually spends 2 days per week in the direct care of his family and 5 days per week in the direct care of the Group Home. His level of disability, coupled with the compromise of the rare blood condition, indicate the need for a sharing of the responsibilities of the care. This includes the responsibility of direct care service providers to be assured that they have adequate understanding of Mr E.N.’s condition and needs, even though the care regime itself may be relatively uncomplicated. This is consistent with paid service providers acknowledging and carrying out the duty-of-care required of them.
The resistance of Mr E.N.’s family members to enabling this sharing of responsibility is regrettable. The family members clearly have a strong attachment to Mr E.N. as a valued family member who requires their protection.
Although the need for Mr E.N. to have a guardian had been disputed by Mr E.N.’s family members in earlier hearings, it was not disputed in the hearing on 6 May 2004, with an application from a family member seeking this appointment. The Board was satisfied that there is a need for a guardian pursuant to section 20(1)(c).
The evidence relating to need for an administrator
The initial application sought the appointment of an administrator for the purpose of enabling “a less restrictive opportunity for Mr E.N. to access his finances – specifically his everyday finances”, and that “the retrospective billing” arrangement in place was far from adequate. The application stated that the family’s unwillingness to comply with the Group Home policies and procedures relating to the management of client funds means Mr E.N. is disadvantaged in his ability to participate in household and community activities.
ND, Manager of Disability Services, stated that whilst Mr E.N. is not able to make financial decisions, his carers believe he has some capacity to indicate choices regarding outings and spending. Under the arrangements by which his family manage Mr E.N.’s finances, there is no opportunity for him to exercise any choices.
The application from Ms S.N. for appointment as administrator acknowledged that there is a necessity for financial issues to now be controlled and supervised by an administrator due to Mr E.N. having spent 5 days of each week living away from the family for the past few years.
On questioning during the May 2004 hearing regarding the financial information requested by the Board at the June 2003 sitting, Mr E.N.’s mother offered her bank account book for the Board’s inspection. Counsel confirmed that this account, although in the joint names of Mrs W.N. and Mr E.N., is Mrs W.N.’s operating account and that her pension and the rental income from a house owned by her, as well as Mr E.N.’s pension were paid into this account. No bank statements were provided. Counsel advised that the family now acknowledged there was a legal need to keep Mr E.N.’s funds separate, and had the previous night made the decision to open a separate account for him.
Counsel also confirmed that no budget was kept, and that the family estimated how much of the funds belonged to Mr E.N.. Counsel stated that the family estimated that the balance of $6542 showing in the passbook would reflect Mr E.N.’s share of funds. The recent transfer of $6000 from this account into a cheque account in Mrs W.N.’s sole name followed a regular pattern of transfers from the joint account into the cheque account to cover costs for Mr E.N. and Mrs W.N., and legal costs.
Counsel stated that the only income Mr E.N. received was his pension, that Mr E.N. had neither liabilities nor any assets apart from clothes, some furniture and items in the house. Counsel advised that a letter sent to the Group Home dated 27 February 2004 requesting details of a debt owed by Mr E.N. to the Group Home had not yet received a response.
Ms S.N. stated that in working as a photographer for a number of years she had spent 6 months in charge of the department and managed the annual budget of $20000. Following questioning by counsel, Ms S.N. provided further information relating to the process she followed during this period of financial management.
Advocate Chrissie Jamieson stated she had had many conversations with Ms S.N. and Mr M.N. about the desirability of Mr E.N.’s money being kept separate, as well as similar conversations with Mrs W.N..
Although the need for Mr E.N. to have an administrator had been disputed by Mr E.N.’s family members in earlier hearings, it was not disputed in the hearing on 6 May 2004, with an application from a family member seeking this appointment. The Board was satisfied that there is a need for an administrator pursuant to section 51(1)(c).
Best interests
Guardianship applications:
The Board is in no doubt that Mr E.N.’s family is committed to him and is willing to assume a formal responsibility for his well-being.
However, family members appear to have been adamant that others, who have the care of him for the greater part of each week, do not require any information other than that which is provided to them via the family to undertake the daily management of his blood condition. The service providers have felt restricted in attempts to understand this condition relative to Mr E.N.’s activities, as well as in seeking avenues of meeting his other health care needs, including dental care.
The family’s attitude gives no acknowledgement of the duty-of-care requirements of the service providers, nor recognition of the implicit responsibility the family have accepted from the service provider in receiving the care provided for their family member. Neither of these positions held by the family is in Mr E.N.’s best interests.
The service providers have sought for a considerable time to reach agreement with Mr E.N.’s family to approve an avenue of direct information flow between the service provider and doctors providing medical care and treatment to Mr E.N. The Board accepts that this is unquestionably in his best interest, and does not devalue the involvement or experience of family members in their contribution to or care of Mr E.N.
Administration applications:
Mr E.N. has been in receipt of a pension for many years, with consistent but apparently relatively small demand on his income to meet his personal and accommodation needs until his move to a group home. No substantiated information has been provided to the Board that demonstrates he has accumulated any assets during these years, other than an estimated share of the balance of a joint bank account held with his mother, and some items of furniture.
The Board has not been provided with information relating to the expenditure of his funds during this time, apart from that provided by the Group Home in relation to his accommodation expenses and his attendance at Day Centre. Family members have stated that no budgets have ever been used by them for the management of Mr E.N.’s funds.
The Board does not consider that the way that Mr E.N.’s finances have been managed in the past have been in his best interests. Since his move to the residential service, there has been a constant difficulty for the service in having funds available to Mr E.N. as he requires them. Instead, his mother has insisted on a retrospective method of payment of fees and incidentals which the service provider states has resulted in Mr E.N. missing out on activities and social outings.
Appropriateness of the guardian or administrator (if relevant)
Guardianship and Administration applications
The inability of the parties providing support and assistance to Mr E.N. to reach and maintain mutual agreement regarding his health care regime and financial arrangements indicate a lack of trust between the parties.
There is an unwillingness or inability by his family to mutually share responsibility to achieve the best outcomes for Mr E.N. This places him in a situation of less than optimum care, evidenced in the frustration of service providers in feeling compromised in both meeting their duty of care and in seeking to expand Mr E.N.’s opportunities for choices in his life. The family also presents as inflexible in apparently needing to control his health care regime albeit as directed by the medical specialist.
The lengthy period during which he has participated in unsuccessful mediation attempts are an indication to the Board that Mr M.N. may have considerable difficulty changing his position from that which he has held in the past. The Board considers that an independent guardian will best represent Mr E.N. in negotiating and supervising appropriate agreements and protocols between his family and other caregivers, taking into account the opinions and recommendations of health care and medical providers in the overall development of any care plans.
The information provided by Ms S.N. along with that elicited following questioning by counsel did not convince the Board that this applicant had any particular financial skills or understandings which would qualify her for appointment as her brother’s administrator. The Board was also of the view that, if so appointed, there may arise conflicts of interest for her in her relationship with her mother, who has had the management and control of Mr E.N.’s funds all his adult life.
Least restrictive alternative
Guardianship and Administration applications
The least restrictive alternative is generally accepted as being that which least legally affects the right of the individual to exercise choice and decision-making regarding his or her lifestyle and finances. In Mr E.N.’s case, it is clear from the evidence provided by all parties that Mr E.N. has had in his life little or no opportunity to regularly do so. Attempts by others in recent years to provide him with such opportunities have not been recognised or supported by his family group.
It is also apparent from letters and verbal statements provided to the Board from members of Mr E.N.’s family that they have believed that the family has had guardianship and financial management authority in making decisions for and about him. Until the evening prior to the most recent sitting, there has been no clear indication that the family has recognised that Mr E.N.’s money belongs to him independently from funds owned by his mother or other members of the family.
It is the view of the Board that the appointment of an independent guardian and an independent administrator will provide the best opportunity for developing an environment more conducive to encouraging and facilitating Mr E.N. to participate as much as possible in such decisions.
Conclusion
During the course of the hearings relating to this matter, the members of Mr E.N.’s family have displayed resistance and reluctance to the participation of service providers to contribute to or participate in decisions relating to his care or activities.
This pattern ameliorated during the processes of the previous sittings, with the consequent acceptance by the Board of continuing attempts to mediate the unresolved issues. They have remained unresolved.
The family’s desire that Mr E.N. continue in his current accommodation despite the unresolved issues, and the pressures felt by service providers as a result, have placed his accommodation at some risk.
Mr E.N.’s family clearly has always accepted the responsibility of caring for and providing for him since his early childhood. It is the Board’s view that there is no commensurate awareness by the family of the accountability owed for the manner in which that responsibility has been exercised since Mr E.N. became an adult.
Although counsel had advised during the hearing that family members felt that recently “the heat had gone out of the situation”, this was not supported in information from service providers or from Mr E.N.’s advocate. At the conclusion of the hearing of submission from counsel on the importance of family members undertaking the roles of guardian and administrator, the issues and conflicts between family and others caregivers were clearly stated.
THE BOARD ORDERS
That The Public Trustee be appointed 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.
That the administrator consult with all care givers in developing a financial management plan and as necessary from time to time.
That the administrator take all reasonable steps to identify the assets and/or liabilities of the represented person’s estate and provide a report to the Board within 6 months which includes information on the status of the administration.
That the administration be reviewed in 12 months.
That the Public Guardian be appointed as the represented person’s guardian.
That the guardian consult with the represented person’s family and all other care givers including doctors and dentists.
That the guardian provides a written report to the Board at the end of 12 months.
Ruth Hanson Melanie Bartlett Cath Wilding
CHAIRBOARD MEMBERBOARD MEMBER
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