FLI (Emergency Guardianship and Administration)
[2018] TASGAB 26
•3 October 2018
GUARDIANSHIP AND ADMINSTRATION BOARD
HOBART
FLI (Emergency Guardianship and Administration) [2018] TASGAB 26
STATEMENT OF REASONS
Board: Rowena Holder
Date of order: 3rd October 2018
Emergency Guardianship and Administration Order – urgency – whether there may be grounds for making an order
Guardianship and Administration Act 1995 – section 65
Background
On 3 October 2018, the Guardianship and Administration Board made an Emergency Guardianship and Administration Order for FLI.
A request for Statement of Reasons has been made by FLI.
Section 65 of the Guardianship and Administration Act 1995 (the Act) states:
(1) Where the Board considers it proper to do so by reason of urgency, the Board may in respect of a represented person make any order or give any direction considered appropriate in the circumstances.
(2) Where the Board considers it proper to do so, by reason of urgency, the Board may, in respect of a person who is not a represented person but in respect of whom the Board considers that there may be grounds for making a guardianship order or an administration order make an order appointing –
(a) the Public Guardian as his or her guardian; or
(b) The Public Trustee as administrator of his or her estate –and in either case the Board may make any order or give any direction considered appropriate in the circumstances.
(3) The Board may make an order under this section of its own motion or on request by any person whom the Board considers to have a proper interest in the matter.
(4) In the exercise of its powers under this section –
(a) the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as the Board may think appropriate; and
(b) the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances; and
(c) …
(4A) The powers and functions of the Board under this section may be exercised and performed by one or 3 members of the Board as may be determined in each case by the President.
(5) An order under this section –
(a) remains in effect for such period as the Board determines but not exceeding 28 days; and
(b) may be renewed but only once for a further period not exceeding 28 days.
(6) …”
Ms Kelly Mitchell, Social Work Services at the Royal Hobart Hospital (RHH) filed an Application for an Emergency Guardianship and Administration Order pursuant to section 65(3) of the Act. The Board finds that Ms Mitchell in her capacity as a social worker at the RHH is a person with a proper interest in this matter.
The Board proceeds pursuant to section 65(2) of the Act and considers whether:
·There are urgent circumstances pertaining to the person?
·There may be grounds for making a guardianship order and administration order?
Urgency
The Application presented the following urgent scenario:
·FLI is a patient at the Royal Hobart Hospital (RHH), having been admitted since the 19 September 2018 for delirium and hypothermia. The Applicant states FLI was found by Tasmania Police who were conducting a welfare check, ‘on the floor of her home naked and in a confused state’ and her living conditions compromised – “Paramedics also noted that her house was chaotic with clothes strewn around house, mouldy food; faeces and urine.” The Applicant reports that FLI was admitted to the Intensive Care Unit of the RHH having been diagnosed with severe pneumonia and at the time of the application, was in a general ward at the RHH.
·The Application stated that FLI requires ongoing assessment, rehabilitation and discharge planning. Dr Alison Cleary, Geriatrician had seen FLI and recommended her transfer of care to the Roy Fagan Centre (RFC). The RFC is a secure mental health facility.
·The Application states that FLI is vulnerable “to exploitation and financial abuse.” There are allegations made against a brother and a neighbour “of taking advantage of FLI’s finances and accessing her accounts.” The neighbour is said to have access to FLI’s house and her bank cards.
·The Application states that FLI is aware of the Application and would prefer that the Public Trustee manage her finances as she “does not trust her brother or her neighbour” and further states FLI is concerned of the “likelihood that she is being exploited.”
The Board finds that there are reasons for urgency for a guardianship order based on the evidence received as to FLI’s need to be transferred and accommodated at a secure facility. While the Board makes no finding as to the allegations of financial abuse, the Board is satisfied of urgency for an administration order as FLI is clearly vulnerable to financial abuse in her current situation. The Board also notes the wishes said to be expressed by FLI, in particular, “…she has previously had assistance from the Public Trustee and would prefer that they manage her finances as she does not ‘trust’ her brother or her neighbour.”
The Board needs to consider whether there are grounds to make a guardianship and administration order. When the Board assesses an application for the appointment of a guardian it needs to be satisfied of the matters in section 20 of the the Act, that the person :
(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 his person or circumstances; and
(c)is in need of a guardian.
Similarly when the Board assesses an application for the appointment of an administrator it needs to be satisfied of the matters in section 51 the Act, namely that the person:
(a) is a person with a disability;
(b) is unable by reason of the disability to make reasonable judgement in respect of matters relating to all or any part of his or her financial estate; and
(c) is in need of an administrator of his or her estate.
Disability and Incapacity
The Application states that FLI has been assessed by Dr Alison Cleary, Geriatrician who has diagnosed her with delirium on the background of cognitive impairment and which is impacting on her ability to make complex decisions.
The Board is satisfied that there is sufficient evidence that FLI may have a disability namely delirium on the background of cognitive impairment.
The Board is satisfied on the assessment conducted by Dr Cleary, that because of FLI’s disability she may be incapable of making reasonable judgements concerning her person or circumstances, particularly in relation to accommodation which could be detainment in a secure facility, namely the RFC and also in relation to her financial estate.
Need
The Board is satisfied that an Emergency Guardianship and Administration Order is appropriate and that there is a need for substitute decision makers to be appointed. Accommodation decisions need to be made and the ability to convey FLI to that accommodation. Protection of FLI’s financial estate and in particular reduce the likelihood of financial abuse also amounts to a clear need.
THE BOARD ORDERS
1. That the Public Guardian be appointed as guardian for the represented person.
2. That the powers and duties of the guardian are limited to;
(i) decisions concerning where the represented person is to live whether permanently or temporarily, and
(ii) providing consent to any reasonable measures required to convey the represented person to, and cause them to remain at the place of residence as determined by the guardian.
3. The Public Trustee be appointed administrator of the represented person.
The Orders remain in effect until the 31st October 2018.
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