HE (Application to Alter Emergency Guardianship)

[2011] TASGAB 11

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

HE – An application by the Public Guardian for alteration of the terms of an emergency guardianship order

Neutral citation: HE (Application to Alter Emergency Guardianship) [2011] TASGAB 11

Anita Smith (President)
15 July 2011

Guardianship – emergency guardianship – application by Public Guardian to reduce the terms of the order – urgency – operation of an emergency order by a guardian – role of an appeal against application pursuant to section 65(1)
Guardianship and Administration Act 1995 sections 6, 27, 65

This is an application for the Board to exercise its powers pursuant to section 65(1) to reduce the terms of an emergency order dated 8 July 2011.

On 8 July 2011 the Board made an emergency guardianship order in the following terms with respect to HE:

“THE BOARD ORDERS

1.        That the Public Guardian be appointed as guardian of the represented person.

2.        That this order remains in effect for 28 days from this date.

FURTHER THE BOARD DIRECTS:

(1)That on or before the expiry of 25 days duration of this order the Public Guardian shall report to the Board in accordance with the approved form for emergency order reports.

(2)If a further order is required the Public Guardian is hereby directed to take all reasonable steps to ensure that an application for guardianship and a Health Care Professional Report are completed by the applicant before the expiry of the emergency order.”

The Public Guardian was notified of the order.  She emailed the Board’s registrar on 11 July 2011 stating:

“I refer to the emergency guardianship order made by the Board for HE on 8 July 2011 wherein I was appointed her guardian on a plenary basis.

I have reviewed the application together with the handwritten notes of the Board member who made the relevant order.

I submit as follows:

The only lifestyle matters that I can identify extend to where HE is to live, health care and support services. I note that the Board member in her hand written notes for decision in appointing me says “…To appoint PG for 28 days. Plenary order at this stage as there seems to be a complicity of potential issues – accom, medication and influence of others”.

The influence of others relates to an apparent third party concern articulated by the applicant in her application to the Board relevant to financial exploitation, namely “…HE has sporadic support provided by her ex-daughter in law. HE’s daughter said she believes this is a financially abusive situation”. This is an administrative matter not a guardianship matter.

I see absolutely no basis for the making of a plenary order. The order should be limited to guardianship relevant to identified areas of need, namely where HE is to live, health care and support services. In my opinion on the basis of the information available, HE’s need for a guardian doesn’t extend beyond those areas. For the order to encompass all lifestyle decisions for HE is clearly not the least restrictive option for her. In my view plenary orders should be used sparingly and only in circumstances where the facts support it. This is not the case in this instance.

I request formal reasons for decision. Given the practicality of that and the length of the order, is it possible for the Board to immediately review the terms of the existing order pursuant to s.65 (3)?”

On 11 July, in response, the President wrote:

“Your submissions are noted.   It is a matter for the discretion of the Board member who makes the order as to the terms of the order.  It is clear that she exercised her mind towards that and recorded her reasons.  Your request for a statement of reasons will be referred to the Board member.

I also note your application pursuant to section 65(3). I presume that you mention section 65(3) as the basis for your application, but that you mean that you want the Board to consider an alternative order pursuant to section 65(1). Please outline the “reason of urgency” for the reduction in the terms of the order.”

The Public Guardian’s submissions received on 12 July 2011 are as follows:

“I submit that the Board member has not exercised her discretion reasonably having regard to the matters detailed in my previous email.

The reason for the urgency is that HE is being deprived the right to lawfully make decisions for herself in relation to all areas of lifestyle, both actual and potential, in circumstances where the application and notes for decision of the Board member reflect no actual need apart from the areas of where to live, health care and support services. A plenary guardianship order isn’t the least restrictive option and it is inconsistent with the requirements of the Act.”

No factual examples of how this is apparent excess of orders is impacting upon HE have been provided, nor any evidence relating to her wishes. 

Firstly, whether or not the Board member exercised her discretion “reasonably” may or may not be a matter for appeal (according to whether or not it is a question of fact or law and whether the Supreme Court would grant leave to appeal a question of fact) and therefore beyond the scope of this application.

In considering an application pursuant to section 65(1), the Board notes that the Board member considered that it was appropriate to exercise her discretion to make a full guardianship order for 28 days. The Public Guardian, who is not a Board member, takes a different view as to whether or not a full guardianship order was warranted. This, of itself, does not amount to a “reason of urgency” to amend the terms of the order.

The Public Guardian is concerned that the full guardianship order deprives the represented person of her rights to make decisions in “all areas of lifestyle”. Notionally, the order has that effect. However, in operation, the full guardianship order must be acted upon by the Public Guardian cognisant particularly of the terms of subsections 27(2)(c) and (d) of the Act and the principles in section 6. In this respect, regardless of whether or not an order is a full order, the guardian ought to ensure that he or she is not making a decision that the represented person could reasonably make for himself or herself. Presumably, once the appointment starts, the Public Guardian will have access to better information than the Board had in the emergency application and can assess for herself the level of involvement that is required and whether the activities of the guardian expand across the whole range of guardianship matters or just to those that she has listed in her submission. In other words, the terms of the order do not compel her to use all available powers and the principles and guidance in the Act would suggest that she ought not do so unless necessary.

The application appears to have been misconceived. If the Public Guardian intends to seek an extension of the emergency order after the expiration of the 28 days, she can report to the Board about the areas in which the guardian has been required to provide authority or make decisions and make recommendations to the Board as to the terms of any orders that are required in any future orders.  The Board will consider at that stage the terms of a future order.

The application is dismissed.

Anita Smith

PRESIDENT