JO (Emergency Guardianship)

[2014] TASGAB 5

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

JO on the application of BG

JO (Emergency Guardianship) [2014] TASGAB 5

REASONS FOR DECISION

Elizabeth Dalgleish (Member)

Date of decision: 21 March 2014

Emergency guardianship application - requirement of urgency not satisfied

Guardianship and Administration Act 1995 s.25, 65
Mental Health Act 2013

1. JO is a 44 year old man. At the time of the application, he was residing in accommodation provided by a facility in Tasmania. The Support Services Manager of that facility made this application pursuant to the emergency provisions in section 65 of the Guardianship and Administration Act 1995.

2. Relevant provisions of section 65 of the Act states:

   “(2) Where the Board considers it proper to do so, by reason of urgency, the Board may, in respect of a person who is not a represented person but in respect of whom the Board considers that there may be grounds for making a guardianship order or an administration order make an order appointing – (a) the Public Guardian as his or her guardian:…and …the Board may make any order or give any direction considered appropriate in the circumstances.

   (3) The Board may make an order under this section of its own motion or on request by any person whom the Board considers to have a proper interest in the matter.”

Reasons of Urgency

1. The Act does not provide criteria for what constitutes ‘reasons of urgency’. However, the Board’s policy states:

   “Emergency guardianship orders are available when the need for a guardian is too urgent to wait for notice periods to be served and a full hearing. Generally a hearing will be convened while the emergency order is in place to consider a proper application.  …

   Generally, the kinds of issues that establish urgency are that a person is likely to suffer damage to his or her physical, emotional or mental health or wellbeing, or at risk of homelessness, significant hardship or irreversible financial loss, unless preventative action is taken or that an activity is occurring with respect to the person that is unlawful unless it is sanctioned by a guardian”.

2. Making an emergency order would deny JO the opportunity of responding to an application at a hearing.  It is important that the applicant to an emergency order provides clear evidence of the reasons for urgency.   The applicant stated that the reasons for urgency were as follows:

   a)That JO had been “issued with a notice to vacate his current housing at XXXX”.

   b)That “JO’s support needs were exceeding XXXX’s capacity to provide a suitable living environment”.

   c)“All attempts to identify an alternative housing option had been unsuccessful”.

   d)“JO is living with tri-morbidity and attempts to establish a coordinated care plan have not provided adequate outcomes”.

   e)“JO is a vulnerable person which his continued substance abuse, cognitive impairment and mental illness leaves JO susceptible to exploitation”.

3. The Board contacted the applicant by phone for further information about the application. In discussing this application, the applicant stated that whilst a notice to vacate had been issued, there was no imminent plan by the applicant’s organisation to make JO homeless. The applicant also confirmed that JO was not refusing to move to alternative accommodation.  

4. Usually a guardian is only required where a person with a decision making disability is refusing to move to a suitable accommodation facility. The Board considered that the issue of finding an alternative housing option is more suited to a case manager’s responsibilities. In considering this issue, reference was made to section 25 of the Guardianship and Administration Act 1995 which states that it is a guardian’s role is to “decide where the represented person is to live whether permanently or temporarily;”. The role of a guardian in these circumstances is not to find alternative accommodation, but to decide between accommodation alternatives. 

5. The applicant stated that JO has a diagnosis of PTSD and major depression. He also has a closed head injury, memory loss, cognitive impairment/intellectual disability, epilepsy and physical disability.  The application sought the appointment of a guardian to expedite JO being linked and supported by appropriate professionals, including mental health, neurologists, alcohol withdrawal, medical compliance and personal care.  The appointment of a guardian does not typically have the effect of expediting such support.     Due to the limited medical information provided by the applicant regarding JO’s disability, it was considered that it was open to the applicant and JO’s treating team to investigate the possibility of seeking an assessment or treatment order under the Mental Health Act 2013  to address some of the issues confronting JO.

6. In the Board’s view, as JO was not in imminent threat of homelessness, there was insufficient evidence of urgency for the Board to make an emergency order.  The Board was also not satisfied that there was a need for a guardian when the issues may be resolved by a case manager or by the imposition of a Mental Health Act Assessment or Treatment Order. 

7. The applicant was encouraged to submit an application for the appointment of a guardian under section 20 of the Act which would provide the opportunity for the usual investigation and hearing process. It would also be open to the applicant to include an application for administration if there was sufficient need for such an application.

THE ORDER:
 That the application be dismissed.

ELIZABETH DALGLEISH
BOARD MEMBER
21 March 2014