JCK (Review Guardianship)

[2018] TASGAB 17

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

JCK (Review Guardianship) [2018] TASGAB 17

STATEMENT OF REASONS

Justin Otlowski (Chair)
Wendy Hudson (Member)
Angela McKenzie (Member)

Hearing 17 August 2018

Review Guardianship – best interests – conflict of interests
Guardianship and Administration Act 1995

1. JCK is 74 years of age, and is a resident at a Nursing Home Facility in Tasmania.  JCK was living in her own home when she fell and dislocated her right shoulder.  She was admitted to the Royal Hobart Hospital on 24 October 2017 and was then transferred to the Roy Fagan Centre on 7 November 2017 suffering from delirium and alcohol withdrawal symptoms.  After her discharge from the Roy Fagan Centre JCK moved to a Nursing Home Facility.  The Board made an order on 8 December 2017 appointing the Public Guardian as JCK’s guardian.  JCK’s former husband XDK has applied for a Review of that Order and is seeking an Order that he be appointed JCK’s guardian.

2. The Board heard the application on 17 of August 2018.  The Hearing was attended by the Applicant, XDK, Nikki Target from the Office of the Public Guardian, KQ and EK both Managers from a Nursing Home Facility.

3. A Health Care Professional Report (“HCPR”) from Dr D Dunbabin, Geriatrician, dated the 16 June 2018 was lodged with the Application.  In that report Dr Dunbabin stated that JCK suffered from dementia and the prognosis was for progressive cognitive decline.  Dr Dunbabin also expressed the opinion that JCK was unable to make her own financial or lifestyle decisions.  An earlier HCPR from Dr Mee dated 10 November 2017 states that JCK has a severe memory impairment. At the hearing there was no dispute that JCK suffered from a disability and that she was incapable of making reasonable decisions because of that disability.  The sole question for the Board to determine was whether the Public Guardian should continue as JCK’s guardian or whether the Applicant should be appointed as JCK’s guardian.

4. The Applicant, XDK, in paragraph 4 of the Application under the heading Reason for Review stated:

   JCK wants to be permanently with XDK as she was previously married to him and feels safe with him and he loves her and wants to take care of her.

   The Applicant told the Board that he collects JCK from the Nursing Home Facility on Sunday for an outing and that she then spends Sunday night with him at his home.  He said that JCK doesn’t want to go back to the Nursing Home Facility on Monday morning and that he would like JCK to live with him permanently. The Applicant informed the Board that if he was appointed as JCK’s guardian he would take JCK home to live with him.

5. Ms Target informed the Board that she had explored, at the Applicant’s suggestion, JCK moving to a nursing home closer to the Applicant’s residence.  Ms Target discussed this with JCK and JCK told her that she had made good friends at the Nursing Home Facility and did not wish to transfer to another nursing home. 

6. EK informed the Board that JCK had not expressed to staff at the Nursing Home Facility a desire to live with the Applicant.  EK also informed the Board that JCK has high care needs and needs full time care.  JCK needs assistance with showering and toileting and incontinence was becoming an issue. EK also informed the Board that following the visits to the Applicant’s home JCK settles in quickly and does not express a desire to leave the Nursing Home Facility.

7. When asked about his state of health the Applicant advised that he was 85 years of age, takes lots of medication and his general practitioner “keeps me going”.

8. An Aged Care Assessment Team (ACAT) assessment of JCK’s care needs was undertaken on 1 November 2017 and JCK was approved for high care residential permanent care.  After the ACAT assessment the Public Guardian arranged for JCK to move to the Nursing Home Facility.

9. In considering who should be appointed as a guardian the Board, in accordance with s21 of the Guardianship and Administration Act 1995, must be satisfied that the proposed guardian will act in the best interests of the represented person, is not in a position where the person’s interests conflict or may conflict with the represented person and that they are a suitable person to act as guardian.

10. In the Board’s view it is in the best interests of JCK to remain in a residential aged care facility. The evidence from KQ and Ms Target is that JCK has settled in well at the Nursing Home Facility and that she has high level care needs.  The HCPR from Dr Dunbabin states that JCK’s condition is likely to deteriorate, and JCK’s care needs will increase as her condition deteriorates.  The Board also notes Dr Dunbabin’s opinion that a change of guardian would be deleterious to JCK’s health and wellbeing but of course it is a matter for the Board to determine who is the appropriate guardian. The Board has concerns given the Applicant’s age and health, JCK’s care needs and deteriorating prognosis that a change of accommodation is not in JCK’s best interests.

11. The Board notes the care and attention that the Applicant has given to JCK.  The Applicant, if appointed as JCK’s guardian, has told the Board that he would decide that JCK would return to live with him at his home.  That decision is an understandable emotional reaction to JCK’s wishes, albeit soon forgotten, that she does not wish to return to the Nursing Home Facility following visits to the Applicant’ home.  However, the decision fails to consider the matters mentioned in paragraph 9 and lacks objectivity.  The Board is not satisfied that the Applicant would make decisions in the best interests of JCK.

12. The Applicant proposes that he be appointed guardian and that JCK live with him and that he would look after her.  In these circumstances there is a potential conflict of interest as the Applicant would be both a guardian and carer.  If the care provided is not adequate the Applicant is conflicted as it would be the guardian’s role to change the care arrangements.

13. The Public Guardian’s staff are independent and experienced and, in the Board’s, view are better placed to make decisions on JCK’s behalf.

14. On 17 August 2018 the Board Ordered:

    (1)  That the Public Guardian continue as the represented person’s guardian;

    (2)  That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live either permanently or temporarily; and

    (3)  That the order remains in effect to 7 December 2018.