HNE (Guardianship and Administration)

[2011] TASGAB 20

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

HNE – Application for the Appointment of a Guardian and an Administrator by the Royal Hobart Hospital

HNE (Guardianship and Administration) [2011] TASGAB 20

REASONS FOR DECISION

Anita Smith (President)
Catherine Gavan (Member)
Eric Smith (Member)

Date of hearing 17 August 2011

Guardianship and Administration – Incapacity – Suitability of appointees in circumstances of family conflict

Guardianship and Administration Act 1995 sections 6, 20, 21, 51, 54

1. HNE is an 83 year old married man. At the time of the application, he was at the Peacock Repatriation Centre.  A social worker from the hospital made the application to the Board because he was approaching discharge from the Centre but it was considered that it was not safe for him to return home without significant support.  His wishes were to return home.  However his wishes were unrealistic and had provoked or exposed a significant level of family conflict.  The applicant sought the appointment of a guardian to make decisions about his future accommodation and care and an administrator to manage his estate.

1. The application was heard on 17 August 2011.  Although provided with notice, HNE did not attend the hearing as he had consistently stated that he did not wish to attend.  Additionally, Dr Scott Chamberlain had examined him on 16 August 2011 and considered that he was likely to become agitated and distressed if he attended the hearing.  The following persons attended the hearing:

   Barbara Moerd – RHH Social Worker (applicant)

   UI – daughter

   QI – son in law
   HE – son

   WE – daughter in law

   ME– son
   Megan Taylor - RHH Social Worker
   Megan Benier – RHH Peacock Repatriation Centre
   Dr Toby Croft – psychologist
   Edmund Gale – GAB Investigator
   James Nielson – Public Trustee
   Michael Condon – Public Guardian

2. The Board had the following documents available to it:

   Application 7 July 2011

   Letter supporting the application by CN 24 June 2011

   Health Care Professional Report by Dr Mohammad Mir 23 June 2011

   Occupational Therapy Report by Tavonga Mangombe 23 June 2011

   Report by Dr Natalie Martin Consultant Physician/Geriatrician 20 June 2011

   Report by Dr Toby Croft, Clinical Psychologist 22 June 2011

   Aged Care Assessment Team Report 1 July 2011

   My State Financial Account Summary 18 July 2011

   Title search

   GAB Investigator report 11 August 2011

   Letter from DE 14 August 2011

   Letter from HNE 15 August 2011

Pursuant to sections 20 and 51 of the Guardianship and Administration Act 1995 (the Act), before it appoints a guardian or an administrator, the Board must be satisfied that HNE is a person with a disability, that his disability renders him incapable of making reasonable decisions about his estate and his person and circumstance, and that he is in need of a guardian and an administrator.  If satisfied of these matters, the Board then assesses the eligibility of any persons nominated as guardian and administrator. 

Does HNE have a disability? (Sections 20(1)(a) and 51(1)(a))

1. The reports by Dr Martin, Dr Croft and Dr Mir were consistent in concluding that HNE has dementia.   Members of his family did not dispute that diagnosis, but were concerned that he may also have an acquired brain injury from blows to the head.  This concern was not supported by the medical evidence.  The Board was satisfied that HNE has dementia which is a disability within the meaning in the Act.

Is HNE incapable of making reasonable judgments? (Sections 20(1)(b) and 51(1)(b))

1. Dr Mir reported that HNE experienced deficits because of his dementia in his expressive and receptive communication, his impulse control, his capacity for new learning and his planning and reasoning skills.  He stated that HNE is verbose, tangential and not able to understand the risks of going home and independently attending to activities of daily living.  He considered that HNE is very muddled in calculations and will not be capable of making reasonable decisions in regard to property, including managing day to day financial requirements and major financial decisions. 

1. Dr Martin, a consultant physician and geriatrician, stated that HNE:

   “displayed impaired cognition consistent with fronto-temporal dementia with impaired insight and ability to make rational arguments regarding his accommodation or financial matters.” 

   She also stated:

   “HNE has difficulties with abstract reasoning, registration and recall, poor concentration and evidence of executive dysfunction (poor planning, poor calculations and impaired judgment) and dyspraxia. … I believe that HNE’s capacity to make decisions regarding his finances and about where he lives is impaired.”

2. Dr Croft stated:

   “In conversation HNE appears highly eccentric at least; he talks quickly, with a somewhat unusual pronunciation and he very rarely directly addresses any question.  Instead he typically responds with a comment tangential to the subject, which is often repeated or circled back to later in discussion. …

   It is extremely difficult to get any straight answer to a question from HNE. …

   This tangential, perseverative (cycling over repeated topics and phrases) and socially inappropriate conversational style is very characteristic of people with frontal bran impairment.  There was some debate among family and staff, however, about whether HNE had a dementia or not given that he has always been prone to the traits above. …

   These difficulties are consistent with frontal brain pathologies either old or new.  It may be, for instance, that HNE has always had these cognitive issues (perhaps as part of a wider pervasive developmental or other similar disorder) or that they are becoming exaggerated in a dementing process.  Either way he clearly has far more difficulty than usual for his age on simple cognitive exercises and he has a disability in the current context.

   HNE appears not have capacity to make decisions about his current care needs as he:

   ·Does not appear to grasp his care needs for mobility, supervision and general safety

   ·Has a cognitive disability (very “frontal” presentation with RUDAS score well below cut off for dementia, though impaired cognition & social judgment may be very long standing).” 

1. Dr Croft also attended the hearing and discussed the contents of the report answering questions from HNE’s family.  Family members reiterated that HNE has been an unusual communicator and has been unable to “get to the point” for all of his life.  The family members gave evidence of his ability to know which bills need paying and complete bill payment procedures with the assistance of family members. They also stated that he had a longstanding relationship with a solicitor who could assist him with any legal matters.  While they accepted the description of HNE’s behaviour, they denied that these behaviours affected his decision making abilities. 

2. At the same time as arguing that HNE has capacity for decision making, family members at the hearing also suggested that he needed an administrator and guardian appointed for him.  The Board offered on two occasions to adjourn proceedings to enable the family members to read and understand the medical reports in detail.  On both occasions, this offer was declined. 

3. The Board was satisfied on the basis of the medical reports and the evidence from Dr. Croft at the hearing that HNE is incapable of making reasonable judgments about his person and circumstances and his estate.

Is HNE in need of a guardian or administrator? (Sections 20(1)(c) and 51(1)(c))

1. Prior to hospitalization, HNE lived on a rural property at Hobart with his wife DE (also known as M) and their daughter, FE.  HNE and DI have been married for 23 years.  HNE inherited the property in which they lived.  HNE had been married previously and has five adult children from that relationship: UI, HE, ME, TEU and BE.  According to the applicant, with TEU and BE he is largely estranged.

2. The applicant also reported that the relationship between his first family and his second family was strained.  There were reports that DE restricted the access of UI, HI and NF to see their father.  DE rejected these reports.  The Board observed a great deal of animosity towards DE from those family members attending the hearing, for instance inferring that she had caused a head injury to him.

3. Against this background of a fractured family, a decision needs to be made as to where HNE shall live upon discharge from hospital. HNE’s wish is to return home.  Tavonga Mangombe’s Occupational Therapy Report spelt out the range of difficulties in that proposal.  DE has indicated that it is beyond her skills to care for him at home.  UI has made some enquiries for his admission to nursing homes.  If admitted to a nursing home, it may be against his will.

4. The Board was satisfied that there exists a need for a guardian to authorise decisions about HNE’s future accommodation.  The Board also considered that once he is settled in an aged care facility, it is unlikely that there will be a continuing need for a guardian.  Accordingly, the Board considered that a guardian is only needed for eighteen months. 

5. HNE has responsibilities to maintain his property at Hobart.  This will involve continuing to pay upkeep, rates and insurance. He will also have to pay future costs of his own care.  When and if he moves to a nursing home, he and his wife will be separated by his illness but not separated in the sense under the Family Law Act 1975 so far as the Board is aware.  Family members at the hearing reiterated that DE has been largely financially dependent upon HNE throughout their marriage.  This dependence means that HNE most likely also has a responsibility to continue to maintain DE. 

6. The Board was satisfied that an administrator is needed to attend to payment for HNE’s care needs, the maintenance of his property at Hobart and maintenance for DE. 

Eligibility of persons nominated as guardian and administrator (Sections 21 and 54):

1. UI and QI were nominated in the application as proposed guardians.  QI was also nominated as a potential administrator.  As the Board only assigned one guardianship function, it was not possible to appoint more than one guardian.  After this was explained at the hearing, UI continued as a single nominee.

2. TI had the support of the other family members present at the hearing for appointment as a guardian.  Additionally, DE’s letter to the Board confirmed that HNE invests a great deal of trust in UI in relation to decision-making. Therefore the Board considered that appointment of UI would be reflective of HNE’s wishes and would preserve existing family relationships. The Board was impressed that she had undertaken a significant range of tasks already in preparation for the role as guardian. 

3. The role, being limited to making decisions about where he shall live temporarily or permanently, is not a complex one and although members of HNE’s family could not agree on many things, they at least all appeared to agree that returning home was not an option and that the point had been reached where HNE requires residential aged care.  The Board considered that, as guardian, UI will be available and accessible to HNE so as to fulfil the requirements of guardianship.  Accordingly, the Board was satisfied that UI:   

   (a) will act in the best interests of HNE, and

   (b) is not in a position where her interests conflict or may conflict with the interests of HNE, and

   (c) is a suitable person to act as guardian of HNE.

4. With regard to the appointment of an administrator, different considerations applied arising from the needs for an administrator identified above.  It was clear from discussions at the hearing that members of HNE’s family present at the hearing were concerned that DE has historically had the benefit of too much of HNE’s money.  They also generally displayed a belief that, as he had inherited the marital property, DE was not necessarily entitled to remain at that property or entitled to any share of that property. 

5. Not unusually for a blended family, there was reluctance amongst family members present at the hearing to acknowledge the validity of HNE’s second marriage (despite it being a very long marriage of 23 years) especially with regard to the impact of that second marriage on his estate.  While some members of his family were prepared to consider assessing a sum of maintenance for DE (albeit, preferring a minimal sum), the Board considered it unlikely that any member of the family could reasonably and impartially determine DE’s entitlement to a share of HNE’s income or the marital property. 

6. QI offered himself for appointment as administrator.  The Board considered that he is an integral part of the family and his status as an ‘in-law’ would not reduce the pressure that he may come under from other members of the family to pay as little maintenance as possible to DE.  Additionally, DE would be unlikely to feel comfortable in sharing information about her income and expenses with a member of the family. 

7. The conflict between HNE’s children from his first marriage and DE and FE is marked.  Because of this conflict, the Board did not consider that any member of HNE’s families was capable of assessing the reasonable calculation of DE’s living costs or her entitlement to any part of HNE’s property.  To appoint a family member would most likely exacerbate conflict between members of HNE’s family and that would not be in his best interests.

8. The Board considered that the appointment of the Public Trustee was the only means by which HNE’s financial responsibility to his wife could be impartially considered and decided.  Accordingly, the Board appointed the Public Trustee as administrator.  The need for an administrator will be ongoing.  Therefore the Board made an administration order for three years.

Conclusion:

After hearing an application by Social Work Department, Royal Hobart Hospital in respect of HNE (hereinafter called the ‘represented person’)

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 estate; and his person and circumstances

• is in need of a guardian and an administrator

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 administration order remains in effect until 16 August 2014

4. That UI be appointed as guardian of the represented person.

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 guardianship order remains in effect until 16 February 2013.

Anita Smith  Catherine Gavan  Eric Smith

PRESIDENT  MEMBER  MEMBER

Statement of reasons requested: 9 September 2011

Statement of reasons delivered: 15 September 2011