HC (Enduring Guardianship Directions)

[2011] TASGAB 13

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

HC – Application for advice and direction by an enduring guardian

HC (Enduring Guardianship Directions) [2011] TASGAB 13

REASONS FOR DECISION

Anita Smith (President)

Guardianship – enduring guardianship – guardians reluctant to make accommodation decision – role of alternative guardian – substitution of guardian for particular decisions
Guardianship and Administration Act 1995 sections 11, 25, 35, 65

1. HC is an 87 year old man.  On 14 July 2008 the Board registered an Instrument Appointing an Enduring Guardian executed by HC.  That instrument appointed his wife, KC, as guardian and his friend and solicitor, KX, as an alternative guardian.  The guardian and the alternative guardian have indicated that they do not wish to intervene in pending decisions regarding HC’s future accommodation.

The Instrument

1. HC appointed KC as a guardian with all of the powers of a guardian under section 25 of the Guardianship and Administration Act 1995.  In the event of her absence or incapacity, he appointed KX with the same powers.  There was one particular condition regarding the exercise of the powers which essentially relates to the provision of palliative care rather than active treatment in an end-of-life stage, which is not relevant to current decisions.  The instrument appears to be valid on its face and has not been revoked.

   The Application

2. On 7 July 2011, KX telephoned the Board to discuss concerns that he and KC had with regard to the exercise of the powers of a guardian with respect to HC, although the enquiry was made without naming the parties. At that stage, it appeared that HC’s admission to the Roy Fagan Centre was imminent. (The Roy Fagan Centre is a secure psycho-geriatric facility which is often used for short term admissions to resolve extreme behavioural difficulties that an elderly person may be exhibiting.) He stated that KC did not want to be responsible for making that decision when it was likely to result in repercussions against her. KX was advised to make an application for an emergency order pursuant to section 65(1) of the Act for the temporary substitution of the Public Guardian as guardian.

3. KX’s written application was received by the Board on 19 July 2011.  In the application, KX indicated that:

   ·HC And KC were married in 2007, she is his fourth wife,

   ·KX has been HC’s solicitor for 30 years,

   ·HC has one child from a previous marriage, A, who lives in London,

   ·HC has been diagnosed by Doctors Thompson, Davidson, Tolman and Morrissey as having dementia,

   ·Symptoms of the dementia include a level of paranoia about his wife’s actions and motivations,

   ·Both the guardian and the alternative guardian were reluctant to damage their relationship with HC by being responsible for the decision to admit him to the Roy Fagan Centre or another residential aged care, and

   ·Dr Martin Morrissey, Old Age Psychiatrist was preparing a report with regard to the situation.

4. The report by Dr Morrissey was received by the Board on 4 August 2011.  The report confirms that HC:

   ·Has experienced a deterioration in his physical and mental health over the past three years,

   ·Exhibits psychotic symptoms such as sudden enragement against KC,

   ·Receives support through a community aged care package and is accepting of that help,

   ·Has mildly impaired short term memory and prominent dysexecutive functioning,

   ·Does not recognise the extent of his illness nor its impact upon other people, and

   ·Is no longer able to make reasonable decisions about his care needs.

5. Dr. Morrissey considered that a decision could be made to increase the level of external care he receives in his home or whether he requires admission to a residential aged care facility.

6. While it is clear that HC is now a ‘represented person’ within the definition in the Act, the application, taken together with Dr. Morrissey’s report, does not appear to demonstrate sufficient ‘reasons of urgency’ to warrant the Board’s intervention with an order pursuant to section 65(1). However, the application amounts to a petition to the Board to resolve some serious concerns that the two named guardians have with regard to a difficult decision which approaches.

7. The Board must act according to equity and good conscience without regard to technicalities or legal forms, and is not required to conduct its proceedings in a formal manner (section 11(2)). Therefore, I have considered that the application is, in substance, an application pursuant to section 35 of the Act for advice and direction on a matter relating to the exercise of a power by an enduring guardian. In giving advice and direction the Board may “vary the effect of the instrument of appointment or make any other order that it could have made on an application for a guardianship order” (subsection 35(3)(c)).

8. If I am wrong with regard to the above re-characterisation of the application, I note that the Board could give advice and direction to an enduring guardian of its own motion and proceed under that alternative.  Additionally, given the sensitivities involved and the need to preserve important relationships in HC’s life, it is appropriate to proceed to give advice and direction without a hearing.  However, a draft decision has been provided to the two named guardians and to Dr. Morrissey for comment before finalising these reasons.

9. The particular power to which the enduring guardian and the alternative enduring guardian are seeking variation is the power under section 25(2)(a) to “to decide where the represented person is to live, whether permanently or temporarily”.

Consideration:

1. An enduring guardianship is an important vehicle for self-determination with respect to future decisions that may arise after a person’s loss of capacity.  It is important for the Board to respect the self-determination of the appointor.  At the same time, the Board must also consider the appointor’s best wishes. 

2. Many people appoint the people who they love as enduring guardians.  Many people also assume that the instrument will be primarily used for end-of-life decision making where the represented person is unconscious and that these instruments are a vehicle for giving effect to wishes expressed at an earlier time. 

3. Intervention by a guardian is rarely required where the person who lacks capacity will easily acquiesce to the decision of those who care for and support them.  Similarly, when a person is in end-of-life stages and has previously expressed a desire not to have active medical intervention, a ‘person responsible’ can give valid directions to a medical practitioner on their behalf without appointment as a guardian.  Active intervention by a guardian (enduring or otherwise) is usually only required where there is a degree of conflict or where an action approved by a guardian might be otherwise unlawful.  In other words, the guardian may only be called upon to make a decision to which the represented person will be actively and vehemently opposed.  The effect of these instruments is to place the guardian directly into conflict with the appointor and this is not always compatible with a relationship that is based on love and affection.

4. The reasons advanced by the enduring guardian and the alternative enduring guardian relate to their historical and ongoing relationship with HC and the possible destruction that such a decision would have on that relationship.  This is a compassionate concern.  The evidence suggests that both his marriage and the long term friendship with KX are crucial supports for HC. It is clear that both the enduring guardian and the alternative enduring guardian will continue to provide support for HC and each other, but that this particular decision will carry potentially destructive consequences for the relationships between all three individuals. 

5. In considering HC’s best interests, it is important to note that the decision in question is one in which KC has a conflict of interests.  It is clear from Dr. Morrissey’s report that HC’s continued occupation of the marital home is having a negative impact on KC’s freedom of decision and action.  She has quite rightly declined to make this decision as she has identified that her own interests potentially conflict with decisions about HC’s continued occupation of the home. 

6. KC has not sought full abdication from the role as guardian, only the decision about HC’s future accommodation.  Therefore it would appear that the alternative guardianship is not invoked as KC is neither unavailable nor incapacitated, she merely has a conflict of interest with regard to that decision.  The Board does not consider it appropriate to require that the alternative guardian step up to make this decision, as it will severely undermine an important and protective relationship that has been carefully nurtured for 30 years.    

7. The principles in section 6 require that the Board consider HC’s wishes, his best interests and the alternative that is least restrictive of his freedom of decision and action.   His present wishes are clouded by issues that arise from his psychosis; however it would appear that his enduring wishes were for his wife to make decisions if he should lose capacity.  Although it is not explicitly stated, it is implied that his wishes are also to remain in his home.  His best interests are served by preserving two protective and important relationships that he has with his wife and his solicitor.  His best interests are also served by being objectively assessed regarding the best accommodation for him according to his care needs.  The option that is least restrictive of his freedom of decision and action is to preserve so much of the enduring guardianship appointment as is possible, but to excise the part of that instrument that is currently causing difficulty.

8. The instrument is varied to the extent that the enduring guardian’s and the alternative enduring guardian’s powers exclude the power pursuant to section 25(1)(a) - “to decide where the represented person is to live, whether permanently or temporarily”. With regard to that power, the Public Guardian is substituted as the enduring guardian.

Conclusion:

In the matter of an instrument appointing an enduring guardians executed by HC of Hobart (the appointor) appointing KC as enduring guardian and KX as alternative enduring guardian:

After considering an application for advice and direction by KX, the Board varied the effect of the instrument to the extent that the enduring guardian’s and the alternative enduring guardian’s powers exclude the power pursuant to section 25(1)(a) - “to decide where the represented person is to live, whether permanently or temporarily”. With regard to that power, the Public Guardian is substituted as the enduring guardian.

Anita Smith

PRESIDENT