FLG (Guardianship and Administration)

Case •

[2016] TASGAB 12

•

22 September 2016

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

FLG (Guardianship and Administration) [2016] TASGAB 12

REASONS FOR DECISION

Rodney Lester (Chairman)

Date of hearing: 22nd September 2016

Guardianship – Administration – acquired brain injury – fluctuating capacity
Guardianship and Administration Act 1995, s.15, 20, 21, 51

  1. The hearing was in respect of FLG, a 57-year-old woman who at the time of the hearing was recovering from a fractured femur in the Launceston General Hospital. It was planned that she would soon move into the John L Grove Centre for rehabilitation. She had been under an Emergency Guardianship Order with the Public Guardian acting as her guardian, however the latter of the two Emergency Guardianship Orders had expired on August 18th. The application for guardianship and administration was made by Irene Loloa from the Department of Social Work at the Launceston General Hospital. The applicant proposed that the Public Guardian be appointed guardian and the Public Trustee be appointed administrator. 

  2. The hearing was held at the Magistrates Court in Launceston on Thursday 22nd September 2016. It was attended by Irene Loloa, (the applicant), Pirrko Sims, (FLG’s case manager), FLG, (proposed represented person), CT, (FLG’s neighbour and carer), FG, (FLG’s daughter), Sarah Campbell, (Legal Aid solicitor representing FLG by phone from Hobart), Leanne Sanderson, (Office of the Public Guardian), Di Shepherd, (Office of the Public Guardian), Mark van den Emden, (Social Work student, Launceston General Hospital), Elisa Howlett, (Occupational Therapist, Launceston General Hospital), Mimi Churchill, (Occupational Therapist, Launceston General Hospital), Reannah Douglas, (Social Worker, Launceston General Hospital) and Christine Stacey, (the Public Trustee).

  3. At the commencement of the hearing the Chairman outlined the processes that the Board would follow, and explained the criteria that needed to be established for appointment of a guardian and an administrator. The information and reports available to the Board were also detailed.

  4. Section 20 of the Guardianship and Administration Act 1995 empowers the Board to appoint a guardian for a person if:

      1. that person has disability; and
      2. is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances; and
      3. is in need of a guardian.

  5. Section 51 of the Guardianship and Administration Act 1995 empowers the Board to appoint an administrator for a person if:

    a.that person is a person with a disability; and

    b.is unable by reason of the disability to make reasonable judgments in respect of matters relating to all or any part of his or her estate; and

    c.is in need of an administrator of his or her estate.

Disability – sections 3(1), 20(1)(a), 51(1)(a) of the Guardianship and Administration Act 1995 (‘the Act’)

  1. The Board had a Health Care Professionals Report from Dr Tim Mooney which resulted from a consultation on June 16th 2016. Dr Mooney stated that FLG has an intellectual disability, ‘Decreased cognition due to alcoholic brain damage’, as well as a psychiatric disability, namely depression.  Dr Mooney states that the disability is deteriorating and the prognosis is poor ‘…if she continues to drink alcohol.’

  2. The Board also had a Health Care Professionals Report from Dr Duncan Cooke which resulted from a consultation on August 2nd 2016. Dr Cooke stated that FLG has an acquired brain injury resulting from chronic excessive alcohol consumption.’ He also raises the possibility of an intellectual disability but says that this is difficult for him to assess due to records not being available to him.

  3. Legal Counsel, Ms Sarah Campbell said that FLG accepts that she has a psychiatric disability in the form of depression and also acknowledges her alcohol usage. Ms Campbell also stated that neither she nor FLG had any alternate medical evidence to dispute the health care professional reports that were available to the Board.

  4. The proposition was put to Ms Campbell that given the overwhelming weight of evidence provided by the health care professional reports, and the lack of any evidence to the contrary, that the only reasonable conclusion to draw would be that FLG has a disability as defined in the Act. Ms Campbell agreed with this proposition. The hearing proceeded on this basis.

Incapacity – sections 20(1)(b) and 51(1)(b) of the Act

  1. Dr Mooney stated in his Health Care Professionals Report that ‘FLG is incapable of self-care, … repeatedly demonstrated a lack of insight, poor judgement and inability to make rational decisions …’ His view is that FLG’s disability impacts upon her communication, leads to poor impulse control, makes her very susceptible to other’s influence, has decreased her capacity for new learning and has all but destroyed her planning and reasoning skills.

  2. Dr Cooke states in his Health Care Professionals Report that ‘FLG demonstrates markedly limited ability to risk assess and plan risk mitigation. … Her problems with impulse control will make continued abstinence from alcohol impossible as an outpatient without close supervision and intervention. … FLG’s executive dysfunction consequently will limit her ability to make informed decisions regarding both lifestyle and the ability to live independently.’

  3. The Board also had an Occupational Therapy Report prepared by Ms Elisa Howlett and Ms Mimi Churchill which looked at FLG’s cognitive functioning. It found, with testing after a sustained period of no alcohol consumption and also when the symptoms of alcohol withdrawal were not evident, that FLG has various cognitive impairments resulting from her disability. The most severe impairment is in the area of judgement, reasoning and insight with lower levels of impairment in attention, memory and executive function.

  4. Finally, the Board considered FLG’s recent history of decisions, especially in relation to her health, when assessing her capacity. Within the last 18 months FLG has had two episodes at her house in George Town that have necessitated hospital care. In both instances FLG has initially refused assistance where the only reasonable course of action has been to place yourself in the care of the health care professionals. Her actions demonstrate a lack of capacity to make reasonable decisions, and this reinforces the view that she lacks capacity in a range of areas as a direct result of her disability.

  5. It appears certain that the alcohol exacerbates FLG’s incapacity, however the occupational therapy report finds the lack of capacity still present after some period of abstinence. The Board was satisfied that FLG was currently unable to make reasonable decisions about her personal and financial circumstances, and that this was as a direct result of her disability.

Need, Guardianship– section 20(1)(c) of the Act

  1. At the time of the hearing FLG was awaiting transfer from the Launceston General Hospital to the John L Grove centre for rehabilitation. There appeared to be no dispute that this was the appropriate course of action, however there was a divergence of views on what would happen once the rehabilitation process had finished. FLG appeared determined to return to her house whilst the overwhelming view of the health care professionals was that the house was physically unsuitable and the environment would inevitably lead to FLG recommencing her bouts of heavy drinking.

  2. The health care professional reports confirmed the views expressed at the hearing that FLG’s ongoing care could be expected to be substantially compromised if, as she wished, she returned to her house.

  3. There were also concerns raised about FLG’s acceptance of appropriate health care as this had been a problem in the past. Whilst it appeared that this issue had abated somewhat after the reasonable period of substantial abstinence from alcohol whilst in hospital, the Board accepted that there still existed a need for the ability to make reasonable decisions on FLG’s behalf in this area.

  4. The final area of need that was identified at the hearing was that of access to, and acceptance of, various health and community services that were identified as being critical to FLG effectively making the transition from hospital and rehabilitation to some form of community living. Again FLG’s erratic behaviour historically appeared to be causing concerns that this was an issue, and the Board accepted that it would be appropriate to address this area to maximise the chance of a successful reintegration into the community.

  5. FLG remained of the view that she did not need a guardian, however neither she, nor anyone else, put forward any persuasive argument to support this view. It was clear to the Board that there was no less restrictive course of action that served FLG’s best interest other than to appoint a guardian.

Appropriateness of appointee - sections 21 and 15 of the Act

  1. The application was for the Public Guardian to be appointed. FLG proposed that, in the event of a guardian being appointed, her daughter FG should be appointed. Later in the hearing FLG seemed to withdraw her support for the appointment of FG.

  2. In considering the appointment, the Board looked at the suitability of FG to act as guardian as required by section 21(1)(c) of the Act. The Board was particularly concerned at the strain, especially in the short term when a number of difficult decisions may need to be made on FLG’s behalf, that FG’s appointment may place on the relationship with her mother. The Board felt that this factor meant that FG was not a suitable appointment, although recognised the possibility that this could change given time.

  3. The Public Guardian has statutory functions and powers under section 15 of the Guardianship and Administration Act 1995, and is an appropriate appointment.

Need, Administration– section 51(1)(c) of the Act

  1. There had been concerns raised in the health care professional reports, as well as by FLG’s service providers, that there were significant amounts of monies being withdrawn from FLG’s bank accounts. It was generally not possible to get a sensible explanation for these withdrawals from FLG.

  2. The Board had a copy of FLG’s bank statement from XXXX. This statement covered the recent period when FLG had been in hospital with her leg in traction, and unable to leave the hospital and access any ATMs. For the period from July 1st through to the hearing date there had been 10 withdrawals from FLG’s account through ATMs and 1 using EFTPOS. The withdrawals totalled $1,414.15.

  3. When asked about the withdrawals FLG could offer no explanation other than someone was stealing her money. She did indicate that she had lent some funds to FG, however this was confirmed to be $100, so it was clear that in excess of $1,300 had been removed from FLG’s account over about a ten-week period.

  4. There are probably a number of plausible explanations for the funds withdrawals, however it is clear that none of them serve FLG’s best interests. At best this serves to reinforce the view of Dr Mooney that FLG is ‘very susceptible to others influence’, and ‘unable to make reasonable decisions regarding her finances …’

  5. The Board was of the view that FLG’s estate could be best preserved and protected by the appointment of an administrator, and such an appointment would be in her best interests. FLG was strongly of the view that she did not need an administrator and wished to maintain control over her finances. There was no proposal at the hearing that anyone other than the Public Trustee should be appointed.

Time for review

  1. The Board considered the proposition put at the start of the hearing by Ms Campbell that she would like to see further neuro psychological tests done on FLG after a significant period of abstinence from alcohol to see if her cognition had improved. Both health care professional reports from the doctors are guarded on FLG’s prognosis if abstinence can be sustained but neither completely discounts the possibility that she may improve.

  2. Principally for this reason the Board determined that 12 months was an appropriate length for the orders. Toward the end of this period the review will necessitate further health care professional reports, and if FLG has managed to sustain her abstinence this will undoubtedly give her the best chance of convincing her doctors, support workers and indeed the Board, that she is capable of taking a greater responsibility for the decisions that are required to serve her best interests.

The Board’s Decision

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 their person and circumstances; and
  • is in need of a limited 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. where the represented person is to live whether permanently or temporarily,

  2. 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, and

(iii)the provision of support services for the represented person

  1. That the order remains in effect to 21st September 2017.

and

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 their estate; and
  • is in need of an administrator;

THE BOARD ORDERS

  1. That The Public Trustee be appointed as administrator of the estate of the represented person.

  2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

  3. That the order remains in effect to 21st September 2017.

RODNEY LESTER               
MEMBER

Date of Decision
22 September 2016

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