HSJ (Guardianship and Administration)

[2015] TASGAB 5

GUARDIANSHIP AND ADMINISRATION BOARD
HOBART

HSJ – Application for appointment of a guardian and an administrator by the Royal Hobart Hospital

HSJ (Guardianship and Administration) [2015] TASGAB 5

REASONS FOR DECISION

Anita Smith (President)

Date of hearing: 26 March 2015

Guardianship and administration – ‘person with a disability’ – incapacity to make more complex financial decisions – rigidity in making decisions about where to live after discharge from hospital – guardian needed to establish supports at home and to evaluate a trial period after discharge – effect of Public Trustee’s fees on appointment on the represented person’s estate

Guardianship and Administration Act 1995 s. 20, 51

1. On 22 January 2015 the Board received an application from the Royal Hobart Hospital for the appointment of a guardian and an administrator for HSJ (‘the proposed represented person’).   The proposed represented person is a 60 year old man who is a patient of the hospital having had a stroke.  The contents of the application largely related to the arrangements for his discharge from hospital to accommodate the effects of that stroke. 

1. 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, and

   (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

   (c) is in need of a guardian and an administrator.

2. The application was heard on 26 March 2015.  The proposed represented person was aware of the application and the hearing but did not attend the hearing, having expressed his views to various parties, including the Board’s investigator.  The following persons attended the hearing:

   Natan Ayele, RHH social worker representing the applicant
   Natasha Veenstra, RHH social worker
   TX, friend
   EX, friend
   FT, friend
   KI, friend and accountant
   Derek Harnwell, representing the Office of the Public Guardian

   Edward Kempa, representing the Public Trustee

Is the proposed represented person a person with a disability?

1. In respect of the proposed represented person Dr. Clare Ramsden, B.A (Hons), D. Psych, a clinical neuropsychologist, provided a Health Care Professional Report for the Board.   She noted that he has an acquired brain injured resulting from a stroke and that he has cerebral palsy.  Dr. Ramsden’s evidence was unchallenged at the hearing.   Friends who attended the hearing also made reference to the proposed represented person having “OCD” (obsessive, compulsive disorder) traits and being very rigid in certain behavioural patterns, which were confirmed by Mr. Ayele at the hearing.  The Board was satisfied that the proposed represented person is a person with a disability within the meaning of the Act.

Is the proposed represented person incapable by reason of his disability of making reasonable judgements in respect of matters relating to all or any part of his estate?

1. In the same report noted above, Dr. Ramsden indicated that the proposed represented person has very poor expressive communication, has limited ability to recall or communicate explicit information regarding his finances. She noted that he is unable to hypothesise or identify concerns regarding his finances that may arise in the future and is therefore unable to consider financial decisions that may arise beyond paying bills which he has done previously.  She noted his inability to learn new information and this was also discussed by persons at the hearing. 

1. In Dr. Ramsden’s opinion, the proposed represented person is capable of simple financial transactions and would be capable of day-to-day finances but would need support with any novel arrangements.  She also noted that his thinking is concrete and based on his pre-injury understanding of the world, meaning he would not now be capable of major financial decisions. 

2. The Board accepted that the proposed represented person is competent in day to day financial transactions, that he has been fastidious in his financial arrangements prior to the stroke and that he is likely to continue to be competent in paying those accounts which existed prior to his stroke.  However, his financial circumstances may be likely to change with the need for additional support in his home (or a possible need for supported accommodation) and he will not be capable of making the more complex decisions that may be required to accommodate that support. 

Is the proposed represented person unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances?

1. Dr. Ramsden provided an additional letter, dated 23 February 2015, which states:

   “Whilst HSJ was able to report his impairments, he had difficulty identifying how these would impact on his day to day life, or where he would require support.  When asked about support, he agreed that he could try it but felt he would be ok.  He consistently reported wanting to give home ‘a try’ but could not identify when a trial might be perceived as failing, or what alternatives would be available if a discharge home was not successful.  When asked about the alternatives of a nursing home, he refused this, saying that he did not want to be told what to do,  He was unable to comprehend that there might be levels of support available within a placement setting.”

   “… he is unable to weigh up new information to make a decision. His concrete thinking is such that once he has made a decision, he is unable to consider other options.  He is also unable to consider options about which he has no proper knowledge; for example, he is unable to use information about supported living placements, reverting to his pre-existing knowledge of nursing home to guide his decisions. If given a scenario (e.g. “what if you fell at home?”) he is unable to logically work through how he would solve the problem (e.g. can state “I would phone the ambulance” but unable to identify that he could not communicate with them via phone, and would require support to do so).”

   “In my professional opinion, due to the reasons outlined above HSJ lacks capacity to make decisions regarding his discharge or management (of) his finances.”

2. Mr. Ayele, a senior social worker provide some extensive descriptions in relation to the proposed represented person’s capacity to make reasonable judgements in respect of his person and circumstances, assisted by comments from the proposed represented person’s close associates.   It appears from all of this information, that the proposed represented person’s main deficit in decision making is to understand the needs that have arisen since his stroke and to appreciate the difference in his competence (and therefore his need for additional support) since the stroke. 

3. The proposed represented person’s friends described him as being able to conduct intelligent conversations about politics (for example) but acknowledged that he can be very rigid in his behavioural patterns and his acceptance of support.  Mr. Ayele said that he would only consider “home vs. nursing home” and could not appreciate the range of other options in between.  Discussions about alternative accommodation options caused the proposed represented person to be hostile and obstructive to hospital staff including Mr. Ayele. 

1. The Board is satisfied that the proposed represented person lacks ability to understand that he is more limited in his function than he was prior to his stroke.  As a result he is unable to weigh up whether a trial period in his home (with supports) will succeed or not due to his fixation is with returning home and his refusal of appropriate supports.

Is the proposed represented person in need of a guardian and an administrator?

1. The proposed represented person’s friends described him as a person who has been fiercely independent and fastidious prior to the stroke, with the payment of bills, collecting groceries, hygiene and tidying his home.  He is determined to return home and is supported by ‘an amazing group of friends’. 

2. The Royal Hobart Hospital has referred the proposed represented person to Disability Services who are in the process of arranging a transitional care program, which includes some safety measures (e.g. alarm systems to alert to a fall) and assistance with hygiene.  The proposed represented person has rejected the need for this level of support or considered such support to be irrelevant to him. 

3. All persons at the hearing agreed that the proposed represented person should return to his familiar home environment for a trial, which reflects his fervent wish.  The applicant submitted that a guardian was required because he is likely to reject the support services that will keep him safe at home and because, if the trial should be unsuccessful, the proposed represented person would (a) not be likely to request additional services, or (b) not accept that the trial had been unsuccessful and agree to alternative accommodation options. 

4. The proposed represented person has significant funds and owns the home he has inherited from his parents.   He has never countenanced applying for the Disability Support Pension ever though he may be eligible for benefits or part benefits.  He has lived on earnings from investments.  As his care needs increase, he may benefit from additional income and an administrator is required, in part, to make enquiries as to his eligibility for benefits.  Dr. Ramsden expressed concerns in her report that the proposed represented person has the potential to be exploited by others and that he may not utilize his money to enable himself to live as independently as possible. 

5. For the foregoing reasons, the Board is satisfied that the proposed represented person is in need of a limited guardian and an administrator.  The Board was satisfied that the term of the guardian can be limited to 1 year, whereas an administrator is required in the longer term.

Eligibility of potential guardian and administrator:

1. The applicant nominated the Public Guardian and the Public Trustee as the respective guardian and administrator for the proposed represented person.  The applicant noted the significance of the support that the proposed represented person derives from his friends and expressed a concern that such friends’ role not be merged with decision making roles.   FT indicated, on behalf of his friends present, that an administrator and a guardian are required and that they would “make the hard decisions if required” but felt logistically it would not be possible for them to balance the demands of such roles with their own responsibilities. 

2. The Board asked the Public Guardian’s representative, Mr. Harnwell, whether he had any objection to appointment as a guardian limited to decisions about where the proposed represented person lives temporarily or permanently and the provision of support services and he indicated that he had no objection or concerns about that appointment.  Mr. Harnwell noted the importance of the proposed represented person’s friends in reporting back to the guardian about the success or otherwise of the trial at home and to input to any alternatives.  

3. As a qualified accountant who has already been involved in the proposed represented person’s life, at the hearing KI expressed an interest in appointment as his administrator on a voluntary basis.  He believed that his appointment would be more compatible with the proposed represented person’s wishes and his behavioural patterns than the appointment of the Public Trustee.   This nomination had the approval of the proposed represented person’s friends. 

4. The Board was concerned that the Public Trustee will charge significant commission on the proposed represented person’s estate.  (At the hearing, the Board roughly estimated commission of $30,000, but on reflection the initial commission would be $11,000 which is still a significant figure if the proposed represented person retains his activities of paying his bills etc.) The Board also noted the difficulties that the proposed represented person has had in relationships with hospital staff and considered that appointment of the Public Trustee might provoke the same kinds of opposition.  For these reasons, the Board considered (subject to the provision of a Police check) that the appointment of KI is more appropriate than the appointment of the Public Trustee in these circumstances. 

Conclusion:

After hearing an application for a guardianship order in respect of HSJ (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 person and circumstances; and

•is in need of a limited guardian;

THE BOARD ORDERS

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

2. That the powers and duties of the guardian are limited to decisions concerning:

   (i)where the represented person is to live whether permanently or temporarily and

   (ii)the provision of support services for the represented person.

3. That the order remains in effect to 25 March 2016.

After hearing an application for an administration order in respect of HSJ (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

•is in need of an administrator

THE BOARD ORDERS

1. That KI 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 order remains in effect until 25th March 2018.

Anita Smith

PRESIDENT