GKS (Guardianship)
[2018] TASGAB 5
•3rd May 2018
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
GKS (Guardianship) [2018] TASGAB 5
Reasons for Decision
Board: Lindi Wall (chair)
Hearing Date: 13 April 2018
Guardianship – the role of a guardian – least restrictive option – consideration of person’s wishes
Guardianship and Administration Act 1995
An application by Ms Rhian Jeffes, social worker from the Royal Hobart Hospital (“RHH”) for the appointment of a guardian for GKS was heard by the Guardianship and Administration Board (“the Board”) on 13 April 2018. GKS’s advocate, Jonathon Papadopoulu from Advocacy Tasmania has requested a statement of reasons concerning the Board’s decision to appoint the Public Guardian as limited guardian.
Present at the hearing were:
· GKS,
· Ms Liz Love from the Office of the Public Guardian (‘OPG”),
· MI for the applicant and
· Ms Heidi Morton from the age care facility.
Mr Papadopoulu did not attend the hearing.
The Board had before it documents including;
· Health Care Professional Report from consultant geriatrician, Dr Janina Skelton dated 9/2/19,
· ACAT report dated 10/3/17,
· a report from the Emergency Guardian, Office of the Public Guardian dated 2/2/18
· a personal statement signed by GKS.
The background to the application was as follows:
a) The ACAT report noted that GKS, a widowed 90 year old man was until recently living in his own home with a level 2 care package. He was admitted to the Royal Hobart Hospital (RHH) twice in 2017, the second time after being found at home on the floor in a confused state and incontinent.
b) The OPG’s report advised that in relation to discharge planning following that admission, GKS remained insightless as to his capacity to manage at home. He transferred to permanent care under the emergency guardianship order. On 24/1/18 the OPG agreed to GKS’s strong wish to return home with the resumption of his care package and regular attendance by his GP who had supported a final trial at home.
c) The trial failed and on 4/2/18 GKS was again admitted to the RHH with confusion, paranoia and acopia. He was noted to be unkempt, slightly agitated and smelling of faeces.
d) By the time of this application on 5/3/18, GKS was ready for discharge from the RHH but Dr Skelton reported that he lacked capacity to make decisions about his care and accommodation and that, in the absence of a guardian, he would not be able to access the care and accommodation he required.
e) At the hearing it was noted that his home care package was still at level 2, that this had proved to be inadequate, that he was not even on the waiting list for a level 4 package and that this could then take up to a year to access.
f) At the time of the hearing, with no guardian in place, GKS remained in residential care to which he had been discharged and funded by the RHH on an interim care arrangement. The interim arrangement could not continue and a decision was required about where he would live.
g) In his statement to the Board GKS expressed his unhappiness with his situation and his strong dislike of living in an aged care facility, explaining his wish to return home to his previous care plan and his belief that he was capable of doing so.
h) The applicant sought the appointment of the OPG as guardian for ongoing decision making about where GKS would reside in the future.
When assessing an application for the appointment of a guardian the Board needs to be satisfied of the matters in section 20 of the Guardianship and Administration Act 1995 (the Act); that GKS:
· is a person with a disability, and
· is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances
· is in need of a guardian.
The Board must also balance the principles in section 6 of the Act, which require the imposition of the least restriction on a person's freedom of decision and action as is possible in the circumstances; and that the best interests of and 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.
The medical evidence diagnosing GKS’s disability was not disputed at the hearing. Whilst GKS asserted strongly that he could manage at home, there was no medical evidence to contradict Dr Skelton’s report as to his lack of capacity to make a reasonable decision about this.
It was evident from GKS’s written submissions and from what he said at the hearing, that his focus was solely on the fact that he wanted to go home, rather than on opposition to the appointment of a guardian. The Board clarified for him that its role was not to make decisions about where he was to live, but rather to appoint, if necessary, a guardian to make that decision taking into account all the circumstances, including his wishes. At the hearing he did not oppose the appointment of a guardian, namely Ms Love, with whom he had a good rapport, and who had actually agreed to and facilitated his previous return home in late 2017.
The history and the medical evidence before the Board made it clear that it was in GKS’s best interests to have a guardian to make decisions for him about accommodation and care. The appointment of a guardian would provide the only possible opportunity to further his wish for a successful return home in the event that sufficient supports could be put in place to ensure his safety and wellbeing.
After hearing the application for a guardianship order in respect of GKS, the Board was satisfied that GKS (hereinafter referred to as ‘the represented person’) is a person with a disability; is unable by reason of that disability to make reasonable judgments about their person and circumstances; and is in need of a limited guardian.
For the reasons set out, the Board formed the view that the Public Guardian should be appointed as GKS’s guardian for a period of 12 months limited to decisions concerning accommodation and support services.
Conclusion
THE BOARD ORDERS
1. That the Public Guardian be appointed as the represented person’s limited guardian
2. That the powers and duties of the guardian are limited to:
decisions concerning where the represented person is to live whether permanently or temporarily
(ii)decisions concerning access to support services
3. That the order remains in effect until 12 April 2019.
Ms Lindi Wall
Chair
3rd May 2018
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