JES (Guardianship and Administration)

[2008] TASGAB 12

GUARDIANSHIP AND ADMINISTRATION BOARD
Hobart

JES on the application of LW, NN and KT

Neutral Citation:  JES (Guardianship and Administration) [2008] TASGAB12

REASONS FOR DECISION

Anita Smith (President)
Malcolm Schyvens (Member)
Anne Parker (Member)

Date of Hearing: 17 July 2008

Guardianship – capacity to make reasonable judgments – matters raised in application reflect long term personality traits and relationship issues rather than evidence of incapacity - domestic arrangements result in no present need for a guardian or administrator. 
Guardianship and Administration Act 1995s 20, 51

1. This is an application for the appointment of a guardian and an administrator for JES pursuant to Parts 5 and 7 of the Guardianship and Administration Act 1995.  Her three daughters made the application on 17 February 2008 as well as an application for an emergency order.  The emergency order was not granted.  The Board then received a Health Care Professional Report dated 4 June 2008 from Dr Martin Morrissey at which point the pre-hearing investigation commenced and the hearing date was set. 

1. The hearing on 17 July 2008 was attended by:

   JES – Proposed Represented Person
   EC – Her sister
   KT – Daughter and Applicant
   TT  – Granddaughter
   LQ – Daughter and Applicant
   NN – Daughter and Applicant
   Lee Perry – Investigation and Liaison Officer of the Board

   JES had nominated two friends, CX and KG, to provide evidence by telephone against the application, but they were not called upon.

1. Documents supplied to the Board are listed in Annexure “A”. The Board took the contents of these documents into account as well as the evidence given by parties at the hearing. Such evidence was taken, according to the usual practice of the Board, informally with questions directed by the Board to the witnesses.

Basis of the application:

1. The applicants’ concern about their mother came to the attention of the Board in February 2008 when they believed her to be homeless. They described in the application their mother’s loss of short and long term memory, deficits in daily living activities and in exercising financial skills.  Additionally their mother had rejected their attempts to discuss or participate in decision making issues.  The applicants all live interstate and have been concerned that they are unduly excluded from the ability to have direct influence over their mother’s day to day decisions. They are concerned that such isolation has contributed to negative outcomes for their mother.

Does JES have a Disability?

1. Dr Martin Morrissey, an Old Age Psychiatrist, reported on 4 June 2008 that JES has dementia probably of the Alzheimer’s type.  The Aged Care Assessment Team in an assessment dated 1 November 2007 also noted early dementia as primary health condition with the greatest impact upon her need for assistance with activities of daily living and social participation.  JES admitted to some memory problems but disputed the significance of these.  The Board was satisfied that JES is a person with a disability for the purposes of the Act.

Does JES’ disability affect her ability to make reasonable judgments?

1. Dr Martin Morrissey’s report noted JES’s failure to obtain stable accommodation as evidence of her being unable to reliably make reasonable plans and follow them through.  On the basis of history from her daughters, he believed that she is occasionally prone to impulsive acts or inappropriate decisions regarding her finances and accommodation.  He reported a range of difficulties that she may have with regard to financial decisions and accommodation decisions.

1. JES had moved into suitable and relative stable accommodation since the time of Dr Morrissey’s report.  Following the pre-hearing investigation, the Registrar contacted Dr Morrissey alerting him to the environmental changes for JES.  According to the Registrar’s file note, Dr Morrissey agreed that having a settled environment would enable JES to adopt a routine which may overcome some of the deficits she experiences.

1. The applicants indicated that they are happy with JES’s current accommodation.  The accommodation is linked by means of distress buttons to a medical centre across the street.  The applicants’ evidence that JES made unreasonable judgments by reason of a disability was primarily based upon prior accommodation upheavals.  However, there was little evidence of any recent judgments about accommodation, health care or finances which could have been termed unreasonable judgments.  For instance there was no evidence of outstanding rental or accounts.

1. The applicants also described JES’ failure to keep them informed of her movements as evidence of poor judgment.  However, the Board heard evidence from EC, JES’ sister, that she has always been able to keep contact with her sister.  The Board concluded that JES had made a personal judgment to limit the involvement of her daughters, but this judgment appeared to be consistent with long term personality traits and relationship issues rather than evidence of incapacity. 

1. Additionally, JES presentation at hearing was very impressive.  She clearly had some word finding difficulties but described a range of measures she has adopted to enable her to cope in her home with activities of daily living.  She also appeared very firm in seeking independence from her daughters.

1. Without direct evidence that JES is making unreasonable judgments because of her disability, the Board was unable to conclude that JES’ disability renders her unable to make reasonable judgments.

1. Further, even if the Board has overstated JES’ capacity to make reasonable judgments about her finances or accommodation issues, JES appears to have her domestic arrangements in place to such an extent that there is no present need for a guardian. 

1. The Board strongly recommended that JES seeks legal advice to establish an enduring guardianship and an enduring power of attorney so that, in the event that her disability may become more pronounced, substitute decision makers have been appointed according to her wishes. 

1. The application is dismissed.

Anita Smith  Malcolm Schyvens  Anne Parker
PRESIDENT  MEMBER  MEMBER

Statement of reasons delivered 2 September 2008

ANNEXURE ‘A’

1. Application for Emergency Order dated 17/2/08

2. Board decision rejecting the Emergency Order Application dated 19/2/08

3. Application for Guardianship & Administration dated 17/2/08

4. Board file note 25/02/08 conversation between L Perry & applicant

5. Board fax to Dr Edwards 17/03/08

6. Response from Dr Edwards 18/03/08

7. Report from Dr M Morrissey 02/03/08

8. Board file note 24/04/08 conversation between L Perry & Dr Morrissey

9. HCPR 04/06/08 from Dr Morrissey

10. Property details

11. ACAT assessment November 2007

12. Board report L Perry 09/07/08

13. Board report D Webster 09/07/08