FQT - Applications for the appointment of a Guardian and an Administrator
[2013] TASGAB 6
•5 April 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
FQT - Applications for the appointment of a Guardian and an Administrator
FQT (Guardianship and Administration) [2013] TASGAB 6
REASONS FOR DECISION for the appointment of a guardian
Rodney Lester (Chair)
Sue Hill (Member)
Rowena Holder (Member)
Date of hearing: 5 April 2013
Guardianship – person with dementia – need – breakdown of relationship between person’s family – detention in secure facility without informed consent
Guardianship and Administration Act 1995 s. 3(1), 15, 20(1)(b)(c), 51(1)(b)(c), 21
The hearing was in respect of FQT, an 85 year old widow, who at the time of the hearing was residing in a secure care unit at Peace Haven. FQT has 4 living children, 3 of whom attended the hearing. One of her daughters died some time ago and she has another son, BT, who did not attend the hearing. BT had previously assisted FQT, however there had been accusations from other family members that he had misappropriated significant funds from FQT’s estate. Principally as a result of this the relationship between BT and his siblings was dysfunctional, which effectively meant that FQT had little practical support from her family. The application for Guardianship and Administration was made by Christina Jackson from Community Options Services. The applicant proposed that the Public Guardian be appointed Guardian, and the Public Trustee be appointed Administrator.
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 either a Guardian or Administrator. The information and reports available to the Board were also detailed.
The hearing was held at the Magistrates Court in Launceston on Friday, April 5th, 2013. It was attended by MT, DQ and LT, (all children of FQT), LQ and EC, (both sons in law of FQT), David Symons, (Public Trustee), Kylie Hillier, (Public Guardian) and the applicant Christina Jackson. Also attending as observers were recently appointed members of the Guardianship and Administration Board Susan Aylett and Ken Stanton.
Disability – sections 3(1), 20(1)(a) and 51(1)(a)
The Board had a Health Care Professionals Report from Dr Keith Barnes and a Cognitive Assessment from 63 Area Dementia Nurse Christina Jackson. The views and experience of the family was also canvassed at the hearing. It was clear that FQT had a disability as defined in section 3(1) of the Guardianship and Administration Act 1995. Dr Barnes stated in his report ‘Patient has a substantial dementia … which indicates severe cognitive deficits in all areas.’
There was no evidence introduced challenging the proposition that FQT had a disability, and all at the hearing that knew her supported the view that FQT had Alzheimer’s Disease, which was resulting in dementia that was reasonably severe and likely to deteriorate.
Incapacity – sections 20(1)(b) and 51(1)(b)
Dr Barnes stated in the Health Care Professionals Report when questioned about FQT’s capacity to make reasonable decisions about where she should live, ‘None – she wishes to stay at home but this is probably impractical.’ He further indicated that she had no capacity to understand medical treatment or make reasonable decisions regarding relationships or interactions with friends or relatives. The Cognitive Assessment completed by Dementia Nurse Christina Jackson, identified poor concentration, limited planning and problem solving skills and lack of insight into her condition.
There was no evidence introduced that challenged the proposition that FQT lacked capacity in a wide range of areas, and that this incapacity was a direct result of her disability.
The Board was firmly of the view that the only reasonable conclusion was that FQT had a disability, and as a result of this disability lacked the capacity to make reasonable decisions in relation to matters concerning her estate, her accommodation, her health care and her general circumstances.
Need – sections 20(1)(c) and 51(1)(c)
FQT’s circumstances were such that there were several areas that required actions to preserve and manage her estate. The appointment of an administrator was uncontentious, therefore this statement of reasons will not details the reasons for that appointment but, rather, will concentrate on the reasons for appointment of a guardian. There was a deal of discussion regarding the need for the appointment of a Guardian, and general agreement that the principal area of concern was accommodation. At the time of the hearing FQT was about to complete 62 days of respite at Peace Haven. She was residing in the secure care unit at the time of the hearing and indications were that she would need to stay in that unit, at least in the short to medium term, if she were to stay in the facility. A place was available in the secure unit for FQT. At the time of the hearing FQT was not opposing staying in the secure care unit, although Christina Jackson stated that at various times during the respite stay FQT had tried to abscond from the unit by climbing or breaking through the fence. Christina Jackson was of the view that this behaviour could be expected to continue. There was concern expressed by family members that their brother BT may attempt to remove FQT from the home and she would not have the capacity to resist such a move. There was also a discussion about the issue of detention of FQT in the secure facility without her informed consent, and the need for someone to be in a position to provide that consent.
Ultimately the Board came to the view that FQT needed a Guardian to provide consent for her detention in the secure unit, which would otherwise be potentially unlawful. Her circumstances were complicated somewhat by the dysfunctional nature of her family, and the possibility that further deterioration in these relationships could result from some actions that the Administrator would be required to take in investigating the alleged misappropriation of funds from her estate. The Board was concerned that any accommodation for FQT that constituted a potential deprivation of liberty should be appropriately authorised, and the only way in which this could be achieved was by the appointment of a Guardian.
It was clear from the evidence before the Board that FQT’s best interests were served by her receiving care appropriate for her circumstances, and at least in the near term this would necessitate her accommodation in secure care. It was also clear that she had no insight into her circumstances and was unable to give informed consent to her detention in such a facility. The appointment of a Guardian in these circumstances is consistent with advice the Board has received from the Solicitor General that from a human rights perspective at least, such an appointment has significant benefits for the resident of the facility. Limiting the Guardianship to accommodation issues, and then only whilst FQT resides in a secure unit, protected her best interests whilst providing the least restrictive option capable of delivering a satisfactory outcome.
Appropriateness of appointee - sections 21 and 15
There was no proposition that any person other than the Public Guardian should act as FQT’s Guardian, if it were decided that a Guardian should be appointed. The Public Guardian has statutory functions and powers under section 15 of the Guardianship and Administration Act 1995, and is an appropriate appointment.
Directions
There were no directions relating to the guardianship order.
Time for review
Whilst the guardianship order is for 3 years it is to lapse if the Guardian reports that FQT has been moved from the secure care facility into circumstances where she were not being subject to detention.
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 her estate, and her person and circumstances; and
is in need of a guardian and an administrator;
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 is to investigate whether the represented person’s funds have been misappropriated by family members and report to the Board within 6 months.
That the administrator is to advise the Board when a contract is signed for the sale of the represented person’s property.
That the administration order remains in effect to 4 April 2016.
That the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live whether permanently or temporarily.
That the guardianship order remains in effect to 4 April 2016 or until the guardian reports to the Board that the represented person ceases to be in a secure facility, whichever is sooner.
RODNEY LESTER SUE HILL ROWENA HOLDER
CHAIRMEMBER MEMBER
Date of Decision
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