HND (Guardianship and Administration)
[2019] TASGAB 22
•22 July 2019
CITATION: | HND (Guardianship and Administration) [2019] TASGAB 22 |
HEARING DATE(S): | 22 July 2019 |
DATE OF ORDERS: | 22 July 2019 |
DATE OF STATEMENT OF REASONS: | 12 August 2019 |
BOARD: | Mr S Roberts Ms C Cheek Mr A Mihal |
APPLICATION: | Guardianship and Administration |
CATCHWORDS: | Guardianship and Administration – whether there is a need for a guardian and/or administrator to be appointed |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss 6, 20, 51 |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
STATEMENT OF REASONS
The Application
On 22 July 2019 the Guardianship and Administration Board (‘the Board’) heard an Application for Guardianship and Administration for HND. The Application was filed by FD, who is one of his daughters. She sought that she be appointed as Guardian and Administrator for her father.
The Board had the following documents before it:
a. Application for Guardianship & Administration dated 25 May 2019; and
b. Health Care Professional Report by Dr Chantal Roddy dated 10 April 2019 (‘the HCPR’).
The following persons attended the hearing:
a. HND - the proposed represented person;
b. FD – the Applicant (by telephone);
c.Dr Chantal Roddy – Neuropsychology Registrar;
d. Ms Katrina Grandfield – Social Worker;
e. Ms Di Shepherd – Office of the Public Guardian (also by telephone);
f.Ms Mikala Davies - representing the Public Trustee; and
g. Ms Tayla Riedel – Nursing Assistant.
As a result of the hearing the Board concluded that there is no need for either a Guardian or an Administrator to be appointed.
Full details of the Orders appear at the end of this Statement of Reasons.
Dr Roddy has requested a Statement of Reasons in relation to the Board’s decision.
Requirements of the Guardianship and Administration Act 1995
When the Board assesses an application for the appointment of a Guardian and an Administrator it needs to be satisfied of the matters in sections 20 and 51 of the Guardianship and Administration Act 1995 (‘the Act’), that the proposed represented person:
a)is a person with a disability;
b)is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances, or in respect of matters relating to all or any part of his estate; and
c)is in need of a Guardian and/or an Administrator.
The Board must also balance the principles in section 6 of the Act, which include:
a)adopting the least restriction of the proposed represented person’s freedom of decision and action as is possible in the circumstances;
b)promoting the best interests of the proposed represented person; and
c)that, if possible, the wishes of the proposed represented person are carried into effect.
Background and evidence
HND is a 46-year-old man who was residing on the North-West of Tasmania prior to his admission to the North West Regional Hospital (‘NWRH’) in Burnie in early February 2019 as a consequence of a possible insulin overdose. He suffers from Type 1 diabetes and is an amputee. He attended the hearing in a wheelchair.
He has three daughters. The eldest (who is the Applicant) resides on the Gold Coast in Queensland and the other two daughters live in [the location].
As mentioned above, the Board had the benefit of a HCPR from Dr Roddy dated 10 April 2019. That document states that HND has:
likely hypoglycaemic brain injury resulting from insulin overdose” and “Type 1” diabetes (poorly managed). Possible additional hypoxic brain injury during the period of hypoglycaemia.
The HCPR also stated:
HND has sustained what appears to be a significant hypoglycaemic brain injury. He had a prolonged ICU admission (21 days) and while he has made some recovery, progress is slow and gains minimal to date. He cannot reliably express basic daily needs. He requires support for decision-making related to discharge destination, and is currently unable to manage his financial affairs. He also requires support with regard to ongoing treatment decisions, including rehabilitation.
In relation to his prognosis, the HCPR stated:
Prognosis for hypoglycaemic brain injury is difficult to establish due to its rarity. There is some potential for future recovery, but post-injury recovery has been slow with minimal gains.
In the Application, HND’s daughter stated this in relation to why she believed her father needed a Guardian:
He has issues eating, clothing and cleaning himself. He will require further support and care in the future. His likely recovery will be slow to very minimal.
The Applicant then repeated the comments about her father’s prognosis that were set out in the HCPR as referred to immediately above. (During the hearing the Applicant conceded that she had relied upon the HCPR in her preparation of the Application.)
During the hearing, it became very clear that there had been a noticeable improvement in HND’s condition during the months between the completion of the documents submitted to the Board and the hearing.
Does the proposed represented person have a disability
HND is an amputee and is reliant upon a prosthetic leg or a wheelchair for mobility.
His insulin overdose resulted in some substantial cognitive deficits initially and his recovery was slow. However, those deficits had diminished quite significantly by the time of the hearing. Dr Roddy indicated to the Board that his condition had improved, but there were still some deficits in relation to his memory and he still had some difficulties with respect to complex planning.
Is the proposed represented person by reason of the disability unable to make reasonable judgements
Sections 20 and 51 of the Act both require the Board to be satisfied that a proposed represented person is: ‘unable by reason of the disability to make reasonable judgements’.
The concerns expressed in the Application and the HCPR related to HND’s medical and accommodation needs, and his ability to manage his financial affairs.
Although HND’s medical needs are quite significant, it was clear that he was accepting advice from relevant healthcare professionals, and he was not resistant to any suggestions made by those professionals.
Prior to the hearing, HND had completed documentation to become a National Disability Insurance Scheme (‘NDIS’) participant. The hospital social worker’s evidence was that HND had commenced that process without initial input from hospital staff. However, upon becoming aware of his NDIS application, hospital staff had made the National Disability Insurance Agency (‘NDIA’) aware of his need for supported accommodation.
When he was questioned directly about the suggested need for supported accommodation, HND indicated that he accepted that such accommodation is needed. His preference is that it be either in the Hobart area or on the Gold Coast, so he can be near one or more of his daughters.
HND conceded that he had struggled with the management of his financial affairs at times. However, his eldest daughter had been helping him with his finances and that help was being provided even before he was hospitalised.
The Board was satisfied on the evidence that, when he is given guidance by relevant professionals or family members, HND is able to make appropriate decisions in relation to his medical and accommodation needs and in relation to the management of his financial affairs.
Does the proposed represented person need a Guardian and/or Administrator
It was clear from the evidence that HND is not resistant to proper medical treatment when it is suggested to him.
He also accepts the need for him to be in supported accommodation.
The Public Guardian’s representative submitted that, with help from his daughter and an advocate (such as the “Speak Out” advocacy service), HND would be able to work his way through the bureaucratic processes involved in an NDIS application.
Having heard the evidence and considered the supporting documentation, the Board concluded that there is no need for a Guardian to be appointed for HND.
As mentioned above, HND’s daughter has been helping him with his finances since before his hospitalisation. His evidence was that he is happy for that continue, and he also gave evidence that he is willing to provide any necessary authorities to relevant financial institutions and to Centrelink for that to happen.
In those circumstances, the Board also concluded that there is no need for an Administrator to be appointed.
Decision
The Board concluded that, while there may have been a need for the appointment of a guardian and/or an administrator for HND when the Application and HCPR were filed, such a need does not now exist because of the improvement in his condition.
Orders
The Board ordered that the Application for Guardianship and Administration be dismissed.
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