II (Guardianship)

[2012] TASGAB 18

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

II - application for guardianship.

Neutral citation: II (Guardianship) [2012] TASGAB 18

REASONS FOR DECISION

Kim Barker (member)
Date of hearing: 17 July 2012

Guardianship – decisions re accommodation – wife found not able to make objective decisions in best interests of RP – brother deemed not suitable for appointment in the interests of preserving family relationships 

Guardianship and Administration Act 1995

1. II is an 80-year-old man, currently residing at the mental health facility.  II was subject to an emergency guardianship order from 28 May 2012 extended to 22 July 2012.  The powers of the Public Guardian vested under that order were limited to decisions as to where II should live, whether permanently or temporarily.

2. The Guardianship and Administration Board (the Board) received two applications for the appointment of a guardian, the first from Megan Benier, Social Worker, dated 21 June 2012, and the second from DI, II’s wife, dated 15 July 2012.

3. The applications were heard at the mental health facility, Hobart on 17 July 2012.  The following people were in attendance:

   ·     Dr Warusawithane

   ·     Megan Benier, social worker and applicant

   ·     KI, brother

   ·     Craig Frazer, RN

   ·     HI, brother

   ·     BI, brother

   ·     DI, wife and applicant

   ·     SI, son

   ·     Lisa Warner, Public Guardian

   ·     SI2, son

   ·     Lee Perry, compliance officer, Guardianship and Administration Board

   ·     Brit Bullard, investigation officer, Guardianship and Administration Board

   ·     Dr Jane Tolman, by telephone.

4. I had before me and took into consideration the following documentation:

   ·     The aforementioned applications, together with an accompanying report from Megan Benier dated 21 June 2012

   ·     Letter dated 12 June 2012 addressed to “To Whom it May Concern” from Dr Mizagan Fatima

   ·     Reports in reference to the emergency order and extension of the emergency order by Public Guardian, Lisa Warner

   ·     Report by investigation officer to the Board, Rowena Holder

   ·     Health care professional report prepared by Dr Nicklason, dated 8 June 2012 

   ·     Aged Care Assessment Team (ACAT) report dated 9 May 2012

   ·     Application for emergency order, prepared by Megan Bernier, dated 28 May 2012.

5. Section 20 of the Guardianship and Administration Act 1995 (the Act) enables the Board to appoint a guardian in respect of the person for whom an application was made as follows:

   (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–

   (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 or her person or circumstances; and

   (c) 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.

6. The Board must also balance the principles in section 6 of the Guardianship and Administration Act 1995:

   A function or power conferred, or duty imposed, by this Act is to be performed so that

   (a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted and

   (b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and

   (c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.

Is II a person with a disability?

1. The health care professional report prepared by Dr Nicklason states that II has vascular dementia with behavioural and psychotic symptoms.  On the basis of that report and in the absence of any evidence to the contrary I was satisfied that II has a disability.

Is II, because of that disability, unable to make reasonable judgements about his person or circumstances?

1. The letter from Dr Fatima states that II “has deficits in cognition meaning that he lacks the capacity to make complex decisions such as those relating to finances and accommodation”.  Dr Nicklason’s report states that II had deteriorated rapidly in the previous three to four months, that he was not capable of making complex decisions, that he is confused, lacks insight into his illness and has “no understanding of any aspect of medical care”.  There was no dispute as to the medical evidence regarding II’s capacity.  I accordingly found that II lacks the capacity to make reasonable, informed decisions about accommodation and health care matters.

Does II need a guardian?

1. II has been a resident of the mental health facility, a secure mental health facility, for the last two months, with substitute consent to his accommodation being provided by the Public Guardian under an emergency order.  Ms Benier’s application states that II is likely to require extended treatment at the mental health facility and then transfer to a secure residential facility when appropriate.  Her report states that he has been consistently objecting to his detention at the mental health facility and resists care and treatment.  She anticipated that he would be unlikely to voluntarily transfer to residential care when that was recommended.  I was satisfied that II needs a guardian to make decisions on his behalf about accommodation.

2. To date, Dr Tolman said decisions about medical care and treatment have been made in consultation with family members.  She indicated that there have not been any problems with this.  I was not satisfied that II needs a guardian for the purpose of making medical decisions.

Who should be appointed to the role of guardian?

1. Section 21 of the Act provides the following directions regarding the appointment of a guardian:

   (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

   (b) the desirability of preserving existing family relationships; and

   (c) the compatibility of the person proposed as guardian with the proposed represented person and with the administrator (if any) of his or her estate; 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.

2. In her application, DI proposed herself as guardian for her husband.  II’s brother, HI, also indicated his willingness to undertake this role.   As with all applications for guardianship, it is also open to the Board to appoint the Public Guardian.

3. DI expressed a strong desire to take her husband home, to live with her, consistent with his wishes.  She indicated her opinion that she could provide appropriate care for him, and manage his aggressive outbursts.  She opined that he is much more settled now that his prednisolone dose has been reduced.   

4. DI’s wishes for her husband are contrary to the opinions and recommendations of the treatment team.   II has been assessed by the ACAT team as requiring high level dementia specific care.  He requires full assistance with toileting, showering and dressing, and medication administration.  He refuses mobility aids and has had a long history of falls.  The evidence provided by RN Craig Fraser and Dr Tolman at the hearing was that while he has periods where he is quite calm, his behaviour over all is unpredictable and he can quickly become confused, disoriented, severely anxious and aggressive. This occurs frequently at nights, but may occur at any time.  The staff at the mental health facility are able to monitor this closely and respond very quickly with various strategies, and are also able to administer appropriate medication to calm him.  Their view was that DI would be unable to safely manage her husband at home.  Ms Benier stated that there are insufficient community resources to replicate the sort of 24-hour care available at the mental health facility. 

5. BI expressed his admiration for the fantastic care that DI has provided over the years, but also concern that she would not be able to cope with his brother’s now high care needs and aggression, stating that ‘it would wear a single person down’.  DI refuted this, stating that she has a calming effect on her husband.

6. When asked directly how she would go about the process of deciding where her husband was to live if appointed as his guardian, given the divergent views of her own and those of the medical team, she described how she would care for him.  She did not demonstrate a proper understanding of the requirement of a guardian to act in the best interests of the person under guardianship, or describe how she would weigh up medical advice, for example, that might conflict with her and her husband’s wishes, in the decision making process.  

7. Whilst I have no doubt that DI is a loving, caring wife with all the best intentions for her husband, and while I find it commendable that she so strongly wants him home so that she can care for him, I was not satisfied that DI would able to make objective decisions in her husband’s best interests. 

8. With regard to HI, I was positively satisfied that he would act in his brother’s best interests and that he was not in any apparent position where his interests may conflict with his brother’s.  However in considering his suitability, I am also required to take into consideration ‘the desirability of preserving existing family relationships’.   I formed the view in the course of the hearing that II has a large caring and committed family, for whom their brother/father/husband’s situation has been understandably stressful.  The decisions needing to be made on II’s behalf regarding where he is to live, both now and in the future, are complex and not made easy by II’s repeated requests to go home, or by his wife’s desire to take him home.  The importance of preserving family relationships in such situations cannot be underestimated – hence the law requiring this to be one of the factors that must be considered in determining a prospective guardian’s suitability.  I considered that the potential conflict or disagreement between family members about where II should live has the potential to place those relationships at risk.  I also considered it to be in II’s best interests if such disagreement between the people who are supporting him can be avoided, and if those family members are able to support each other in this difficult situation, free from any recriminations.

II’s wishes, his best interests and the least restrictive alternative:

1. II reportedly expresses his wishes to return to his home on a daily basis.  The clear consensus of medical opinion, and that of most family members, is that this would not be in his best interests as it would not be safe for him to do so.   Unfortunately in these circumstances, II’s best interests will take precedence over his expressed wishes.  The ‘least restrictive alternative’ in this case is to allow family members to continue to provide substitute consent to medical care and treatment decisions as ‘person responsible’.

2. Also in the interests of adopting the least restrictive alternative, I determined that the order would remain in effect for 12 months only.  This will allow a review in 12 months in the event that there is an ongoing need for guardianship, and, if so, will also enable a family member the opportunity to seek appointment in the place of the Public Guardian if the circumstances and decisions to be made at that time are less likely to put at risk the family relationships.

The Board’s Decision:

The Board was satisfied that II

• 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 the Public Guardian be appointed as guardian of II.
2. That the powers and duties of the guardian be limited to decisions about where II is to live, whether permanently or temporarily.
3. That the order remains in effect until 16 July 2013.

Kim Barker
MEMBER