Jo (Guardianship and Administration)
[2015] TASGAB 12
•7 August 2015
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
JO - Application for appointment of a guardian and an administrator by Centrecare Tasmania
Jo (Guardianship and Administration) [2015] TASGAB 12
REASONS FOR DECISION
Carolyn Wallace
Date of hearing: 7 August 2015
Guardianship and Administration
Guardianship and Administration Act 1995 s6, 20, 51
JO (hereafter referred to as the ‘proposed represented person’) is a 45 year old separated father of three children. He has little contact with his children. The proposed represented person has deceased cognitive functioning due to acquired brain injury, intellectual disability and dementia resultant from alcohol abuse and trauma as well as psychiatric disability due to depression and PTSD.
Two applications were made with respect to the proposed represented person. Both were made by his Case Manager from Centrecare Tasmania, Dean Sullivan, the first being for appointment of the Public Trustee as administrator and the second for the appointment of a guardian. Because the applications were submitted together and dealt with the same factual scenarios, the Board heard both applications together.
In assessing these applications pursuant to sections 20 and 51 of the Guardianship and Administration Act 1995 (‘the Act’) the Board needs to assess whether proposed represented person is a person with a disability, whether that disability renders him incapable of making reasonable decisions about his estate and his person and circumstances and whether he is in need of an administrator and a guardian. If the Board is satisfied of these matters, it assesses the suitability of nominees for the appointment as administrator and guardian.
The Board must also assess applications according to the principles in section 6 of the Act, being:
“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.”
The Board convened a hearing on 7 August 2015 to which the following persons were given notice and attended (with their relationship to the proposed represented person noted):
JO
Dean Sullivan – applicant, Housing Worker and Case Manager
KK – friend
The Public Trustee – proposed Administrator
Jane Blake – Advocate. Jim Patterson attended in her place
QNN – Half brother
Aurelia Kunduk – Sudanese/Dinka community member
David Gould – Sudanese/Dinka community interpreter
Scott Lovell– Baptcare worker
The application for administration:
The Board considered the application for the appointment of an administrator first. This application was uncontentious. A medical report completed by Dr Rodney Davis indicated that due to previous and continued alcohol abuse and a serious head injury due to an assault the proposed represented person has significant deficits to his cognitive ability, in particular, memory and executive skills needed to make day-to-day or financial decisions. It is noted in Dr Davis report, and referral to a Neuropsychology report from Ms Liz Antel, that even with abstinence from alcohol there is little expectation of any improvement in the proposed represented person’s cognitive function. He appears to have an estate consisting of his Centrelink income only.
The Public Trustee is proposed as the Administrator and has been managing JO’s financial affairs since an Emergency Administration Order made on 5 June 2015. The Board made the order that the Public Trustee be appointed as Administrator for a period of three years.
Application for Guardianship:
The application for the appointment of a Guardian was more contentious. An application for an Emergency Guardianship Order was dismissed on 21 March 2014.
Documentary evidence related to the current application consisted of:
·A medical report from Dr Rodney Davis dated 8 June 2015
·The application dated 25 June 2015
·Report from Liz Love GAB Investigator dated 5 August 2015
The applicant and the Baptcare worker outlined their concerns as to why the proposed represented person was in need of a guardian. These included failure to maintain the proposed represented person in supported housing despite the provision of services from all of the following: disability support, multi-cultural services advocate, on site concierge, housing support worker, alcohol and drug counselling, inpatient drug withdrawal program and assistance from friends. Also the proposed represented person does not meet supported accommodation entry criteria in terms of “need” and alcohol abuse. His complexity of need is too great for “mainstream services” and the possibility of the current “special” arrangement tenancy option ceasing shortly.
It was also claimed that by the applicant that attempts to identify an alternative housing option had been unsuccessful. The proposed represented person has “multiple co-occurring conditions…” and attempts to establish a coordinated care plan involving all service providers have not provided adequate outcomes.
The proposed represented person is a vulnerable person and with his continued substance abuse, cognitive impairment and mental illness this leaves him susceptible to exploitation.
The Proposed Represented Person’s Wishes:
The proposed represented person offered no responses when queried about his wishes by the Board. He expressed his gratitude for the services he received and his wish to see his children and visit his mother who is still living in the Sudan.
The representatives from the Sudanese/Dinka community all expressed that the proposed represented person could not live alone and that he was receiving good care and support for which they are grateful.
Application of the Section 6 Principles:
In these circumstances, where responsible decisions have been taken regarding the welfare of the proposed represented person without the need for appointment of a guardian, the alternative that is least restrictive of his freedom of decision and action is for there to be no guardian appointed. His best interests have been catered for and with the implementation of effective case management for his complex needs this is likely to continue into the future.
Usually a guardian is only required where a person with a decision making disability is refusing to move to a suitable accommodation facility. There has been no information presented that the proposed represented person has refused any care or services offered. 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.
The applicant and Dr Davis state that the proposed represented person has a diagnosis of PTSD and major depression. He also has a closed head injury, memory loss and cognitive impairment/intellectual disability. The application sought the appointment of a guardian to expedite the proposed represented person 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. It was considered that it is the role of the case manager and the proposed represented person’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 the proposed represented person.
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.
In these circumstances, and taking into account the section 6 principles, the Board did not believe that the proposed represented person has a need for a guardian and therefore makes the following orders:
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 her estate; and
is in need of an administrator
THE BOARD ORDERS
That Public Trustee be appointed as administrator of the estate of the represented person.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That the order remains in effect until 7 August 2018
AND FURTHER, the Board being satisfied that there is no need for the appointment of a guardian, the application for guardianship is dismissed
Carolyn Wallace
CHAIR
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