HDH (No3) (Guardianship)
[2006] TASGAB 8
•3 July 2006
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBARTH.D.H., review of Guardianship Order Made 9 June 2005
Neutral Citation: HDH (No3) (Guardianship) [2006] TASGAB 8
STATEMENT OF REASONS
Anita Smith (President)
Malcolm Schyvens (Board member)
Catherine Wilding (Board member)Hearing: 3 July 2006
1.This is a review of orders made on 9 June 2005, when the Board appointed the Public Guardian as guardian for H.D.H. (‘the represented person’’) with her powers and duties being limited to:
“ … restricting visits to the represented person as may be necessary in his best interests and to prohibit visits by any person if the guardian reasonably believes that they would have an adverse effect on the represented person.”
The order also stated that:
“The powers of the guardian include but are not limited to:
(i)countermanding any previous instructions provided to the Aged Care Facility regarding visitors to the represented person,
(ii)access to medical, psychological, psychiatric, personal or other information relating to the represented person as required to perform the functions described in paragraph 2 hereof, and
(iii)access to hospital and Aged Care Facility records as required to perform the functions described in paragraph 2 hereof.”
2.The reasons for that decision were recorded a statement of reasons written by the Board in H.D.H., on the Application of C.C. 9.6.05 (the previous decision). The Board found, in that matter that the represented person’s son, M.H. , had instructed the Aged Care Facility where he lived to deny access by C.C. to H.D.H. . He also gave the Aged Care Facility a list of 11 named persons who were ‘approved’ visitors, instructing that other persons should be excluded. This list was developed and implemented without H.D.H.’s express permission and contrary to his wishes. The Public Guardian was appointed to ensure the appropriate management of his visitors in his best interests.
The process of the application by M.H. for Review:
3.On 1 November 2005, the Board received an application from solicitors for H.D.H.’s son, M.H., for a review of the guardianship order. The application was not made upon the basis that any of the elements of section 20(1) of the Act had changed. Rather it appeared to be a review of the decision that the Board made pursuant to section 21, being a review of the continued eligibility of the appointed guardian.
4.The application alleged that, since appointment, the Public Guardian had failed to adequately supervise visits to H.D.H. and had by omission or action allowed certain events to take place which were beyond the powers given to her in the order of the Board and had otherwise not acted in H.D.H. ’s best interests. On this basis, the application sought for the orders to be discharged, for Dr T to control all future access to H.D.H. by visitors and for the Board to embark upon further enquiry for the appointment of a guardian, with suggestions that the two practitioners most involved with H.D.H. ’s medical care, Dr T and Dr E, might be appropriate for appointment as guardians.
5.On 4 November 2005 the President wrote a letter refusing to hear that application. The ‘decision’ in that letter was then appealed to the Supreme Court. On 21 December 2005, His Honour, Justice Slicer, upheld the appeal and the matter was appealed and cross-appealed to the Full Court. On 23 March 2006, the Full Court decided that the:
“… President did not have any power to make the decision referred to in her letter of 4 November 2005. It follows that the respondent's application to the Board pursuant to s67(c) is still pending, has not been disposed of. [And] … that the orders of the learned primary judge be set aside; that the cross-appeal be dismissed; and that appeal LCA 75/2005 be dismissed on the basis that it was not competent.”
The processes of applications by the Public Guardian and C.C.:
6.By email dated 31 October 2005 the Public Guardian requested advice and directions from the Board. By letter dated 9 November 2005, the Public Guardian withdrew that request in light of the President’s letter to Mr Zeeman dated 4 November 2005.
7.By letter dated 18 January 2006, C.C. applied for an extension of the Public Guardian’s powers. On 18 January 2006 C.C. applied for an extension of the powers of the Public Guardian. The Board sought clarification of the terms of that application on 19 January 2006, which was supplied in letters from her solicitor on 19 April 2006 and 9 June 2006.
8.The applications by C.C. and the Public Guardian both related to a need for clarity regarding whether the Public Guardian had authority to allow C.C. to take H.D.H. from the Aged Care Facility on day trips or overnight trips. This need for clarity arose because of the actions of Dr T giving instructions to the Aged Care Facility that H.D.H. should not leave without Dr T’s permission.
The scope of the hearing on 3 July 2006:
9.The Board, as constituted for the original decision, convened a directions conference on 18 May 2006 and a hearing of the review and C.C.’s application on 3 July 2006. In light of the two unresolved applications relating to similar or related issues, and in light of at the directions conference, by letter dated 1 June 2006 the Board wrote to the parties in the following terms:
“In accordance with natural justice, the Board gives notice that it may, depending upon the evidence presented by the parties, consider the following issues:
1.Clause (1) of the order appointing the Public Guardian as the represented person’s guardian, including a consideration of the eligibility of the Public Guardian and any other proposed guardian pursuant to section 21 of the Act.
2.Whether there is a need to extend the powers and duties of the guardian, whomever appointed. In particular, but not limited to, whether the powers and duties should include the power to make decisions regarding authorisation for the represented person’s travel and accommodation outside the Aged Care Facility and, if so, upon what conditions.
3.Whether there is a need for any further advice and directions to the appointed guardian pursuant to section 31 of the Act.”
Activities related to the Guardianship Order between 9 June 2005 and 3 July 2006:
10.Following appointment, the Public Guardian requested copies of H.D.H.’s medical records, conducted discussions with his General Practitioner and sought, through interviews of letters, the views of interested persons who had participated in the hearing process. A letter and photograph of C.C. was provided to H.D.H. Approximately 2 weeks later, the Public Guardian instructed the Aged Care Facility that, so long as H.D.H. wished to have visitors, such visits should be allowed unless the home determined that a person had an adverse affect upon him.
11.On 28 June 2005 the Public Guardian arranged a reunion after 15 months between C.C. and H.D.H., which was reportedly a very positive experience for him. He asked C.C. on that occasion to take him for a drive or an outing. According to C.C., he repeated this request on subsequent occasions.
12.On 5 July 2005 H.D.H. fell and fractured his tibia. On 6 July 2005, following a request from C.C. and a review of relevant nursing information, the Public Guardian gave permission for H.D.H. to accompany C.C. to a café in a suburb of Hobart where she would park the car and they could eat in the car overlooking the Derwent. In August 2005 Prof Herr witnessed H.D.H. in C.C.’s car and was concerned that he appeared tired and slumped. Other friends mentioned in the application for review apparently found him to be tired and incoherent on occasions. Such a description is consistent with descriptions of his varying demeanour given for the purposes of the original application.
13.During July 2005, H.D.H. experienced some falls within the Aged Care Facility. In accordance with a discussion in a meeting with Aged Care Facility staff and the Public Guardian, Dr T arranged for H.D.H. to be examined by a specialist geriatrician, Dr E. Dr T expressed a view in the meeting that it was appropriate given H.D.H.’s age that he has two outings per week from the Home. C.C.’s letter to Dr E dated 23 July 2005 reports she had 14 visits with H.D.H.up to that date, including 6 outings.
14.The Public Guardian wrote on 29 August 2005 to Dr E seeking his opinion about such outings and the possibility of an overnight visit. On 2 September 2005 Dr E stated that the outings were a pleasurable experience for H.D.H. and suggested that local overnight trips be arranged to gauge the success of such ventures. Paragraph 28 and 44 of H.D.H. application for review states that the Public Guardian sought Dr E’s advice without informing Dr T. It was clarified at hearing that it was Dr T who sought Dr E’s advice and asked for his involvement in H.D.H. ’s care.
15.Later in September 2005, correspondence between the Public Guardian and Mr Zeeman, solicitor for M.H., re-iterated H.D.H. concern about a visitor who had taken H.D.H. on a drive to Mt Wellington, tiring him. Mr Zeeman recommended that the Public Guardian re-instate the “inclusive list” as it was named in the previous decision. The Public Guardian did not reinstate the inclusive list. H.D.H. was observed to be in the company of C.C. near a restaurant in a suburb of Hobart on 21 September 2005 and was then reportedly tired for other visitors on 23 September 2005.
16.On 2 October Dr E reviewed H.D.H. ’s condition and expressed caution about H.D.H. travelling, especially in light of a possible bladder infection and his general state of health.
17.On 20 October 2005 H.D.H. had an overnight visit to Ms C.C.’s Sandy bay flat. Although he reportedly enjoyed the visit, he experienced a serious fall which lead to some bruising on his face. The following morning Dr T attended at the Aged Care Facility and found that H.D.H. was out. He stated in the Aged Care Facility notes that H.D.H. should not be allowed to leave the home without medical clearance from him.
18.On 27 October 2005, C.C. took H.D.H. out for a haircut. Nursing notes record another fall on this date, though it does not appear to be related to C.C.’s outing. On 29 October, Dr T formalised this to restriction to 2 hour visits within the grounds of the Aged Care Facility. The Public Guardian was informed of this restriction by the Aged Care Facility on 31 October 2005. That direction by Dr T appears to have been the catalyst for the application for review by M.H. and the Public Guardian’s application for advice and direction (later withdrawn).
19.On 27 March 2006 H.D.H. fell at the Aged Care Facility and suffered cracked ribs and bruising, requiring hospitalisation. Dr T declared thereafter that he was not fit to leave the Aged Care Facility for 1 month.
20.A report in April 2006 from the Director of Care at the Aged Care Facility stated that H.D.H. ’s required care mainly with respect to his mobility, hygiene, continence, and communication. In April 2006 his hearing aids disappeared, presumably accidentally with laundry.
21.The Public Guardian’s report of 27 June 2006 requested clarity regarding the conflicts between Dr T’s views and the Public Guardian’s views particularly regarding H.D.H. ’s outings and contact with C.C. and the need for clear advice to be given to the Aged Care Facility staff who reportedly felt at times like the ‘meat in the sandwich’.
22.Other general issues arising from the papers supplied with the applications were:
(i)That the persons who had previously been included in the ‘inclusive list’ were disturbed by the reunion of C.C. and H.D.H. , particularly regarding the level to which he was too tired from activities with her to engage with them to a level that they expected.
(ii)H.D.H. put pressure upon C.C. for outings and drives.
(iii)Notes record the nursing staff having positive views about the mollifying effect of C.C. on H.D.H. ’s cooperation with Aged Care Facility routines and the use of walking aids.
Procedure at the hearing:
23.H.D.H. was represented by Mr Warmbrunn, C.C. by Mr Williams and the Public Guardian by Mr Turner.
24.H.D.H. did not present any witnesses in support of the application to review the order. Though they had been in existence since November 2005, two ‘statements’ were presented at the commencement of the hearing from Dr S and Assoc Prof I. Neither ‘statement’ actually contained evidence but were merely argumentative. The Board placed no weight upon them at all. Allegations of bias contained in Dr S’ ‘statement’ were not pursued by counsel for M.H. Some photographs depicting H.D.H. were also provided to the Board, but as the photographs were not dated, they were not particularly relevant. Because no evidence was lead as to the provenance of these photographs, the Board placed no weight upon them at all.
25.The Public Guardian and C.C. both gave evidence as witnesses. Each of the representatives made submissions to the Board on the need or otherwise for revision of the orders appointing the Public Guardian. As with the last hearing, procedures were informal, cross-examination was discouraged and the Board engaged in discussions with witnesses and their representatives.
Findings upon H.D.H. Application to Review:
26.At the hearing, Mr Warmbrunn relied upon the written submission and presented two main arguments in support of that application. Those arguments were as follows:
(i) That the Public Guardian had sought a referral to Dr E without consultation with Dr T
(ii) That C.C. was not suitable to have contact with H.D.H. because she mistook his level of need, as shown in the fact that she had asserted he was level 2 care where other documents showed he was level 5. Hence the decision of the Public Guardian to allow her to take H.D.H. from the Aged Care Facility was inappropriate.
27.The first of Mr Warmbrunn’s arguments failed because, as noted above, it was explained during the hearing that Dr T in fact made the referral to Dr E and the Public Guardian contacted Dr E afterwards to seek his opinion on matters related to H.D.H. ’s social activities. The second argument failed because the Board was not familiar with the scale referred to and no other evidence about that scale was available to the Board.
28.The allegations related to the Public Guardian’s activities in the application were considered by the Board. For the main part the issue complained of was that while the order made by the Board appeared to be limited to visits to H.D.H. in the Aged Care Facility, the Public Guardian had authorized outings for him and it was argued that this was outside of the terms of the order. In particular, it was alleged that the Public Guardian had acted contrary to these terms of the statement of reasons that accompanied the order made 9 June 2005:
“To refer to the terms of Ms A.A.’s application, the Board does not consider that C.C.’s requests to take H.D.H. out of the Aged Care Facility for visits to her home in the North West and picnics are in H.D.H. ’s best interests.”
best interests, such role being delegated from the Board. It made this clear in the statement of reasons as follows:
29.By reason of the appointment on 9 June 2005, the Board vested in the Public Guardian the role of judging H.D.H. ’s
“… The Board assumes that a statutory officer appointed to protect the best interests of a vulnerable person will take whatever steps are necessary to prevent distress and act in a professional manner appropriate to the circumstances.”
Further:
“Mr Zeeman’s submissions point to ‘incompatibility’ between Ms Warner and H.D.H. . The factual bases upon which he makes that assertion are of H.D.H. ’s reactions after her visit, not during. Again, the Board assumes that a statutory officer appointed to protect the best interests of a vulnerable person will act in a professional manner appropriate to the circumstances.”
30.While the Board gave guidance within the terms of the statement of reasons, the orders made were reasonably broad and assumed a level of discretion in that role. The Board is of the view that the judgments that the Public Guardian made in this respect were reasonable and consistent with the duties of a guardian under section 6 and section 27 of the Act. This is not evidence of a ‘breach’ of the terms of the order but the appropriate exercise of her discretion. Accordingly, the Board was not satisfied that the actions of the Public Guardian alleged in the application by M.H. were in breach of her duties under the Act or the terms of the order.
31.The proposition of appointment of alternative guardians did not appear to be seriously pursued. The applicant did not supply to the Board any evidence of consent by either medical practitioner, even though the proposal for their substitution had been first proposed some eight months earlier. Neither did the application specify why two guardians were necessary nor how their duties would be divided according to section 20(6) of the Act.
32.The Board had reservations, in any event, about the appropriateness of treating medical practitioners being appointed as guardians. It is possible that appointment of a treating medical practitioner as guardian imposes a conflict of interests contrary to section 21(1)(b) of the Act regarding the exercise of consent to medical treatment, in that the practitioner may be the ‘person responsible,’ thereby in a position of providing consent to treatment as well prescribing the treatment. In this regard, the Board notes that persons appointing their own enduring guardians are precluded by section 32(4) of the Act from appointing a person who is directly or indirectly responsible for the medical care or treatment of the appointor:
32(4) Appointment of enduring guardian
(4) A person is not eligible to be appointed as an enduring guardian if he or she is, in a professional or administrative capacity, directly or indirectly responsible for, or involved in, the medical care or treatment of the appointor and, if a person who is validly appointed as an enduring guardian becomes so responsible or involved, the appointment lapses.
33.Further, with respect to Dr T, his reports have been consistent in that it is clear that he would prefer to adopt a conservative approach to H.D.H.’s level of contact with C.C. and their outings from the Aged Care Facility. Such an approach is contrary to H.D.H.’s demonstrated wishes, therefore the Board is not satisfied that Dr T would, if appointed as his guardian, balance the duties arising from section 21(2)(a) and 6(c) of the Act against his medical judgments. Appointing Dr T is also a restrictive option and, taking note of the responsibility of the Board pursuant to section 20(6) and of a guardian pursuant to section 27(2)(c), the appointment of a guardian with such restrictive attitudes towards H.D.H. ’s social circumstances would not be appropriate.
34.The presentation of ‘best interests’ in the application appears to primarily related to avoidance of risk of injury from falls and avoidance of urinary tract infections. The applicant appears to assert that contact with C.C. exacerbates that risk, however the evidence suggests that such risk exists whatever is H.D.H. ’s environment and the presence of C.C. was not demonstrated to have any exacerbating effect upon the level of risk. The Board believes that ‘best interests’ is broader and encompasses more than physical health, but overall quality of life issues, including having meaningful and pleasurable relationships with other persons.
35.Taking into account all of the written materials and the submissions made by Mr Warmbrunn at the hearing, the Board was not satisfied that the grounds for the substitution of the Public Guardian were made out, nor that any of the orders sought should be made.
Findings upon Application by Ms A.A.:
36.It was clear to the Board that most decisions made by the Public Guardian on behalf of H.D.H. related to his contact with C.C. but not to any other visitors. This intervention appeared to be because there is still resistance from M.H. , Assoc Prof I, C.E, Dr S and Dr T to contact between the two and the exercise of authority by the Public Guardian.
37.H.D.H. did unfortunately suffer a fall that lead to bruising on an occasion of an overnight visit with C.C. While this is an alarming event, there was also evidence that H.D.H. , who has a resistance to using the walking aids provided, falls in the Aged Care Facility from time to time and suffers bruising.
38.The Board accepts, as put by Mr Warmbrunn, that the difference between H.D.H. falling in the Aged Care Facility to falling in the presence of C.C. is that in the Aged Care Facility there are trained attendants and regular observations to minimise any injury that results. However, C.C. also demonstrated an awareness of her limitations in that regard and indicated that she is prepared to take any steps or any expense recommended to overcome those limitations. This was demonstrated by her acquisition of an Occupational Therapy report regarding her home.
39.The nursing notes reveal that C.C. is an active advocate on H.D.H. ’s behalf. They also revealed that C.C. can have a mollifying effect upon H.D.H. ’s cooperation with care routines and preventive care such as using his walking frame. It concerned the Board that other evidence supplied in the nursing notes and statements that accompanied C.C.’s and the Public Guardian’s applications indicated that the following matters had remained unattended for varying periods:
· Hearing aids had disappeared and not been replaced (we note his reluctance to use them and alternative hearing devices purchased by C.C., but believe it is appropriate to have them available if he should choose to wear them)
· A wheelchair he used for a period had no footplates meaning that he needed to hold his feet up while being pushed
· H.D.H. ’s room does not have a lifting chair
· There was no evidence of H.D.H. having access to hip protectors which might reduce the impact of falls
All of these items could be afforded by H.D.H. and may contribute to his level of comfort. However, redress for those issues does not fall within the scope of the orders appointing the guardian. The Board accepts that the order requires revision to promote H.D.H. ’s best interests.
H.D.H. ’s best interests and his wishes and the least restrictive alternative:
40.Evidence submitted with the applications showed that since first re-establishing contact with C.C., H.D.H. has demonstrated a wish to leave the Aged Care Facility, either on day trips or for a holiday to C.C.’s homes in Tasmania and Interstate.
41.H.D.H. is now 94 years of age. His health varies, particularly with the occasional bouts of urinary tract infections, which also affect his mental state, and the physical effects of falls. In general, however, it appears that H.D.H. ’s state of health has remained relatively stable during the period relevant to the Board and that he also demonstrates a healthy resilience to the setbacks he experiences from time to time.
42.Dr T, however, has made a ‘ruling’ that prevents the Aged Care Facility from allowing him to depart the Aged Care Facility without his approval. Such a ‘ruling’ is contrary to the wishes of H.D.H. . If the test of ‘best interests’ is simply a medical question, then it might be a case of H.D.H. ’s best interests outweighing his wishes and that ‘ruling’ being accepted. However, as stated above, the Board believes that ‘best interests’ is a more encompassing test than that and includes the person’s ability to derive enjoyment from activities and to enhance their quality of life, even if such activities might be shortly forgotten.
43.In the opinion of the Board the act of balancing H.D.H. ’s best interests against his wishes with regard to outings from the Aged Care Facility and the least restrictive alternative involves a complex and quite specialised assessment in light of:
· His history of being highly adventurous, self-determined and sociable
· His ongoing need for mental stimulation
· His advanced age and the need to maximise his enjoyment of this period of his life
· The particular risks to his health
· His level of understanding of those risks
· The methods available to avoid such risks and who can employ those methods
· The need to accord dignity and respect to his wishes
Such an assessment is not merely a medical assessment. It was considered by the Board that an interview with a consultant trained under the Respecting Patient Choices program at the Royal Hobart Hospital might be beneficial to independently ascertaining H.D.H. ’s wishes and his level of insight into the risks that his wishes may present to his health.
44.Ultimately it is an assessment that his guardian will have to make. At present, the limited order appointing the Public Guardian would be sufficient to allow her to make those assessments but insufficient to enable her to act upon the outcome of such assessments. The Board was also of the opinion that restricting the activities of the Public Guardian to exercising control over contact between H.D.H. and C.C. was inadequate for his present needs.
45.In light of the evidence submitted by C.C. and the Public Guardian, the Board considered it is necessary to extend the orders appointing the Public Guardian to promote his best interests. The extension required should include the ability to undertake a comprehensive assessment of H.D.H. ’s capacity, mentally and physically to pursue his wishes and the ability to limit any risks that may attend the pursuit of such wishes. This essentially involves an extension to making decisions about overnight visits and health care, encompassed in subsections 25(1)(a) and (d) of the Act.
46.Mr Turner, for the Public Guardian, argued that such powers would require the guardian to expend funds and that it was appropriate that such funds should be drawn from H.D.H. ’s estate. Mr Warmbrunn did not oppose the making of such an order. The Board determined that such an order was appropriate as well as reserving liberty to apply for other funds if demonstrated by the results of the assessments proposed.
47.Costs:
Mr Turner and Mr Williams sought orders for their costs. Section 80 of the Act states:
80. Where the Board is of opinion in a particular case that there are circumstances which justify it in doing so, the Board may make such orders as to costs and expenses as the Board thinks just.
The Board is not of the opinion that the circumstances justify making an order for costs.
Had Mr F.A.B.’s application to review proceeded alone rather than together with C.C.’s application to extend the orders appointing the guardian, the Board may have taken another view. However the applications proceeded together and the Board made an order that it believed reflected the principles in section 6 of the Act, but it did not reflect any of the applications made.
In coming to this decision, the Board has taken into account the submissions made by all parties. The Board agrees with Mr Turner as to the insufficiency of H.D.H.’s application. However, it is not appropriate to use the power to award costs to punish H.D.H. for a poorly prepared application. The Board adheres to its view in the previous costs decision in this matter that costs are compensatory and not punitive.
Because of the Board’s duty to satisfy itself of the elements in section 6, 20 and 21 of the Act, there is no possibility for consent orders before the Board. Therefore, the resultant extension of powers for the Public Guardian could not have occurred by agreement between the parties, only by attendance at a hearing.
In other words, given that the costs of defending the application are merged with the costs of obtaining the extension of powers that both the Public Guardian and C.C. sought at various times, the need for compensation for defending an application for review is abated by the benefits of the clarification of the order flowing to Ms A.A., the Office of the Public Guardian and the represented person.
Given that the occasion of hearing the application for review also aired other important concerns about the operation of the order and the need for alteration of its terms, the Board is of the view that costs are not justified in these circumstances.
Conclusion:
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 his person and circumstances, and
· is in need of a limited guardian;
THE BOARD ORDERS:
- That the Public Guardian continue as the represented person’s guardian.
- That the powers and duties of the guardian are limited to:
(i) decisions about restricting visits to the represented person as may be necessary in his best interests and to prohibit visits by any person if the guardian reasonably believes that they would have an adverse effect on the represented person,
(ii) decisions concerning any temporary accommodation for the represented person, and
(iii) consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such health care.
3. By way of clarification, the Board orders that:
(i) decisions about “visits” for the purposes of order 2(i), above, includes but is not limited to making decisions about the suitable circumstances and environment for contact with any person, whether within the represented person’s permanent place of accommodation or away from those premises,
(ii) “temporary accommodation” for the purposes of order 2(ii), above, includes but is not limited to occasions when the represented person leaves his permanent place of accommodation for one or more nights,
(iii) “health care” for the purposes of order 2(iii), above, includes but is not limited to obtaining specialist assessments, reports or opinions and access to existing medical, psychological, psychiatric, hospital, Aged Care Facility records and personal or other information relating to the represented person as required to perform the functions conferred by the Board
- The Public Guardian is at liberty to apply for payment of the costs and expenses of carrying into effect the powers conferred by the Board in this order.
- Pursuant to section 80 of the Act, the Board is of the opinion that the circumstances justify payment from the represented person’s estate of the reasonable costs and expenses that the Public Guardian will incur in obtaining medical and like information for the purposes of carrying into effect the powers conferred by the Board in this order. Accordingly the Board orders that those costs and expenses shall be paid from the represented person’s estate.
- The Board notes the application for costs made by the Public Guardian and by C.C. but reserves that decision for at least 7 days to allow for the making of a written submission upon those applications by counsel for M.H. in his capacity as applicant or as attorney under the Enduring Power of Attorney ostensibly executed by the represented person.
That the order remains in place until 8 June 2008.
Signed By:
Anita Smith
PRESIDENT
APPENDIX “A”
Legislation:
(j) The provision for review of orders is section 67 of the Act:
67. Review of orders
The Board may at any time –
i.of its own motion; or
ii.on application by, or on behalf of, a represented person; or
iii.on the application of any other person –
hold a hearing to review a guardianship order or administration order.
(k) The requirements for appointment of a guardian are contained within section 20 and 21 of the Act:
20. Guardianship order
(1) If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made–
1. is a person with a disability; and
2. is unable by reason of the disability to make reasonable judgments in respect of all or any matters relating to his or her person or circumstances; and
3. is in need of a guardian–
the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary.
a. In determining whether or not a person is in need of a guardian, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of that person's freedom of decision and action.
b. The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.
c. The Board must not make an order appointing a full guardian unless it is satisfied that an order for limited guardianship would be insufficient to meet the needs of the proposed represented person.
d. Where the Board makes an order appointing a limited guardian in respect of a person the order to be made is that which is least restrictive of that person's freedom of decision and action as is possible in the circumstances.
e. Two or more guardians of a person, each with different functions, may be appointed under one or more limited guardianship orders.
21. Persons eligible as guardians
(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 …
(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.
Once appointed the following provision regulates the exercise of the guardian’s authority:
27. Exercise of authority by guardian
(1)A guardian must act at all times in the best interests of the person under guardianship.
(2)Without limiting subsection (1), a guardian acts in the best interests of a person under guardianship if the guardian acts as far as possible –
(a) in consultation with that person, taking into account, as far as possible, his or her wishes; and
(b) as an advocate for that person; and
(c) in such a way as to encourage that person to participate as much as possible in the life of the community; and
(d) in such a way as to encourage and assist that person to become capable of caring for himself or herself and of making reasonable judgments relating to his or her person; and
(e) in such a way as to protect that person from neglect, abuse or exploitation.
An application for advice and direction is made pursuant to the following provision:
31. Advice or directions as to guardianship orders
(1)A guardian may apply for advice or direction by the Board on any matter relating to the scope of the guardianship order or the exercise of any power by the guardian under the guardianship order.
(2)The Board may require notice of an application under subsection (1) to be given to any person that the Board directs and may exercise its powers under this section without a hearing.
(3)The Board may –
(a)approve or disapprove of any act proposed to be done by the guardian; and
(b)give such advice or direction as it considers appropriate; and
(c)vary the guardianship order or make any other order that it could have made on the original application.
(4) The Board of its own motion may direct, or offer advice to, a guardian in respect of any matter.
(5)…
APPENDIX ‘B’
Applications:
Application for review (with attachments) by M.H. dated 31.10.05
Application (e-mail) from Public Guardian seeking advice and direction dated 31.10.05
Application by Public Guardian to GAB seeking advice and directions dated 8.11.05
Application for review by C.C. dated 18.1.06Reports and medical care information:
Report by Dr E dated 2.9.05
Report by Dr E 2.10.05
Report by the Public Guardian dated 27.6.06Aged Care Facility Assessment Forms dated between 22.4.06 and 7.6.06
Aged Care Facility Handover Sheet for H.D.H. dated between 20.4.06 to 19 June 2006
Aged Care Facility Medical notes dated between 5.10.05 and 29.10.06
Aged Care Facility Nursing Care Plan for H.D.H.
Aged Care Facility RCS dated 26.4.06Statements:
R Herr dated 2.11.05
E Richards dated 7.11.05
C.C. dated 25 June 2006 including photographs and OT ReportCorrespondence and File Notes:
Letter from C.C. to Ms R O dated 23.7.05
E-mail from Ms R O (Aged Care Facility) to C.C. dated 3.8.05
Letter from Public Guardian to Dr E dated 29.8.05
E-mail from C.C. via L Warner dated 31.10.05
File Note by Anne Perks dated 1.11.05
E-mail from C.C. via L Warner dated 2.11.05
Letter from Butler McIntyre and Butler to GAB dated 3.11.05
Letter from Butler McIntyre and Butler to GAB dated 4.11.05
Letter from GAB to Butler McIntyre dated 4.11.05
File Note by Anne Perks dated 7.11.05
Letter from Public Guardian to GAB dated 9.11.05
Letter from C.C. to Dr E dated 16.11.05Letter from GAB to Gunson Williams dated 19.1.06
Letter from Butler McIntyre and Butler to GAB dated 12.1.06 (received 31.3.06)
Letter from Gunson Williams to GAB dated 19.4.06
Letter to GAB from Gunson Williams dated 19.5.06
Letter from Butler McIntyre and Butler to GAB dated 26.5.06
Letter from GAB to parties dated 1.6.06
Letter from Gunson Williams to GAB dated 2.6.06
Letter from GAB to Gunson Williams dated 7.6.06
Letter from GAB to Public Guardian dated 14.6.06
Letter from Gunson Williams to GAB dated 9.6.06
Letter from Butler McIntyre and Butler to GAB dated 28.6.06Misc:
Undated photographs
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