GNH - application for guardianship and administration. - [2015] TASGAB 3

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

GNH - application for guardianship and administration.

REASONS FOR DECISION

Kim Barker (member)
Date of hearing: 12 February 2015

Appointment of independent guardian – appointment of independent administrator – family conflict – differences in family members' opinions regarding best interests

Guardianship and Administration Act 1995 s.6, 20, 51, 54, 67

Mrs H is an 86-year-old woman, who was living independently in a suburb in Hobart until an admission to the Royal Hobart Hospital on 10 November 2014. She was transferred to a “rural” bed (available for a temporary period only) at a rural health facility on 29 December 2014. She wishes to return home, however her treatment providers have assessed that her care needs are now too great for independent living, even with the support of a Community Care package and informal support from family members.
The Guardianship and Administration Board (the Board) received an application for the appointment of a guardian and an administrator, from Royal Hobart Hospital social worker, Jane McDougall, on 17 December 2014.
The application was heard at the Board’s offices at 54 Victoria Street, Hobart, on 12 February 2015. The following people were in attendance:
·     Megan Benier, social worker (in place of the applicant)
·     Alison Croft social worker
·     Michael Condon, Office of the Public Guardian
·     Kiri Van Duiven, The Public Trustee
·     UH, cousin
·     FD, cousin
·     KQ, niece
·     MT, daughter
·     Lee Perry, compliance officer, Guardianship and Administration Board
I had before me and took into consideration the following documentation:
·     The aforementioned application, together with an accompanying report from Jane McDougall, dated 10 December 2014
·     A further letter from Jane McDougall, dated 20 January 2015
·     Report by investigation officer, Elizabeth Love, to the Board
·     Health care professional report prepared by Dr Janina Skelton, dated 15 December 2014.
Sections 20 and 51 of the Guardianship and Administration Act 1995 (the Act) enable the Board to appoint a guardian and/or an administrator of a person’s estate, if it is satisfied that (i) the person has a disability; (ii) the person is unable because of that disability to make reasonable decisions; and (iii) there is a need of a guardian or administrator.
The Board must also balance the principles in section 6 of the Guardianship and Administration Act 1995, having regard to the person’s wishes, their best interests, and the least restrictive alternative.

Disability and capacity:

In this case there was no dispute with the opinion provided by Dr Skelton that Mrs H has dementia and that this results in memory loss, poor planning and reasoning skills, poor insight into her care needs and a lack of ability to make complex financial decisions. I was satisfied that Ms H has a disability and that she lacks capacity to make reasonable decisions in respect of both her financial affairs and her accommodation and care needs.

Is there a need for a need for a guardian and/or an administrator?

Again, there is no dispute in this case that Mrs H requires a guardian to make decisions regarding her accommodation. She continues to express a wish to return home to live, and the consensus of medical and family opinion is that she is not capable of living safely at home. Whilst she is currently accommodated at a rural health facility, she is in a transitional bed which will not be available on an ongoing basis. It seems there may be an option for a permanent bed at this facility, but there is also an application afoot for a bed at an aged care facility. At the time of the hearing, there was no agreement between family members as to which option would be in the best interests of Mrs H (if both options are available).
I am satisfied that there is a need for a guardian to provide substitute consent for Mrs H’s accommodation in a nursing home and, potentially, to decide between nursing home options.
In regard to the need for an administrator, the evidence was that, presuming Mrs H moves into nursing home accommodation, decisions will need to be made about the future of her house in and arrangements will need to be made about the payment of nursing home fees and bond.
I am satisfied that an administrator with formal authority will be needed to make those decisions and manage Mrs H’s affairs.

The eligibility of any nominees for appointment to the roles of guardian and administrator

In this case the applicant proposed the Public Guardian be appointed as guardian and The Public Trustee be appointed as administrator. During the Board’s process of investigating the application, Mrs H’s daughter, MT, nominated herself for both roles. The other family members, KQ, FD and UH, each confirmed during the hearing that they did not wish to be considered for either role due to issues of family conflict, preferring that an independent guardian and administrator be appointed.

Section 21 of the Act provides the following directions regarding the appointment of a guardian:
(1) The Board may appoint as a full guardian or limited guardian any person who is of or over the age of 18 years and consents to act as guardian if the Board is satisfied that that person –
(a) will act in the best interests of the proposed represented person; and
(b) is not in a position where the person's interests conflict or may conflict with the interests of the proposed represented person; and
(c) is a suitable person to act as guardian of the proposed represented person.
(2) In determining whether a person is suitable to act as a guardian of a represented person, the Board must take into account –
(a) the wishes of the proposed represented person so far as they can be ascertained; and
(b) the desirability of preserving existing family relationships; and
(c) the compatibility of the person proposed as guardian with the proposed represented person and with the administrator (if any) of his or her estate; and
(d) whether the person proposed as guardian will be available and accessible to the proposed represented person so as to fulfil the requirements of guardianship of that person.
The reports of Jane McDougall accompanying the application indicate disagreement between family members as to where Mrs H should live, with MT believing the best accommodation to be the rural health facility, and the other family members preferring Aged care facility. It is not irrelevant that each prefer the location closest to their own places of residence – and it is understandable that they would want to avoid increased travel time in order to continue to visit and support Mrs H.
In the hearing, it was apparent that the views of KQ, UH and FD had tempered somewhat, having observed that Mrs H appeared to have settled to an extent at the rural health facility. None-the-less, none had indicated a clear preference for one option over the other.
MT indicated she continues to hold the view that the rural health facility is the best option, on the ground that the facility offers river views, similar to those her mother had in her home, whereas the aged care facility is in a more suburban environment. In addition, the location of the rural health facility is closer to her.
At the time of the hearing, a permanent bed had not become available in either nursing home. All parties agreed that the timing of a bed becoming available could also influence the decision as to where Mrs H is to live.
In this case, I consider that it would be potentially difficult for any family to extract their own interests (avoiding travel time) from Mrs H’s best interests in making a decision about where she is to live. MT holds a clear view as to which nursing facility is preferable, and it may well be that the rural health facility does emerge as the option that best serves Mrs H’s best interests. That does, however, remain to be seen, and it is not the role of the Board to decide on that. Rather, it is the role of the Board to appoint a guardian who can make such decisions and fulfil the role consistent with the directions contained in section 21 of the Act.
I am satisfied in this case that MT’s interests “conflict or may conflict with the interests of the proposed represented person”. I also consider that the “desirability of preserving existing family relationships” will be best served by the appointment of an independent guardian, who will most likely be making decisions against Mrs H’s wishes, and whose decisions will be more acceptable to family members who might be adversely impacted.
For these reasons, I determined to appoint the Public Guardian to the role.
Section 54 of the Act provides similar directions as to the appointment of an administrator, although with some specific differences, as follows:
(1) The Board may appoint as an administrator of the estate of a proposed represented person –
(a) The Public Trustee; or
(b) the Public Guardian; or
(c) a trustee company within the meaning of the Trustee Companies Act 1953; or
(d) any other person, including the guardian of the proposed represented person, who consents to act as administrator if the Board is satisfied that –
(i) the person will act in the best interests of the proposed represented person; and
(ii) the person is not in a position where his or her interests conflict or may conflict with the interests of the proposed represented person; and
(iii) the person is a suitable person to act as the administrator of the estate of the proposed represented person; and
(iv) the person has sufficient expertise to administer the estate.
(2) In determining whether a person is suitable to act as the administrator of the estate of a proposed represented person, the Board must take into account –
(a) the wishes of the proposed represented person, so far as they can be ascertained; and
(b) the compatibility of the person proposed as administrator with the proposed represented person and with his or her guardian, if any.
In this case, the administrator of Mrs H’s estate will have some early complex decisions to make (presuming she resides permanently in a nursing home), including whether to rent or sell her home and deciding on the best arrangements for payment of the nursing home fees and bond. With regard to her expertise to manage the estate, MT said she worked as a legal secretary for a number of years before retiring, and helped her husband with bookkeeping in the management of his plastering business. She said she “has the name of a financial advisor” who she would ask for advice. She said she understood her mother does not want to sell her home and she would like her to keep it, but in reality it might need to be sold. She considered it unsuitable to rent as it is in need of repair.
I am satisfied that MT has some skills that she would bring to the role of administrator, however I cannot be positively satisfied that she has “sufficient expertise to administer the estate” at this early stage of the administration, with complex decisions to be made that are outside MT’s realm of experience.
I have taken into account that MT is reportedly a beneficiary of Mrs H’s will; this may potentially create a conflict between Mrs H’s interests and those of MT.
I have also taken into account the wishes of Mrs H as expressed to the applicant, that she would like KQ to continue managing her affairs and that she did not want her daughter to manage her financial or legal affairs.
For these reasons, I determined that The Public Trustee is the appropriate administrator.
In the interests of adopting the least restrictive alternative, I determined that the guardianship order would remain in effect for 12 months only. This will allow a review in 12 months in the event that there is an ongoing need for guardianship, and, if so, will also enable a family member the opportunity to seek appointment in the place of the Public Guardian if the circumstances and decisions to be made at that time are less likely to put at risk the family relationships. Decisions regarding medical treatment, if required, may continue to be made by the person responsible.

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
is in need of an administrator
is unable by reason of the disability to make reasonable judgements in respect of her person and circumstances; and
is in need of a limited guardian;

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 until 11 February 2018.

4. That the Public Guardian be appointed as the represented person’s guardian.

5. That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live whether permanently or temporarily.

6. That the order remains in effect until 11 February 2016.

DATED this 12 February 2015.

Kim Barker
MEMBER