KC (Emergency Guardianship)
[2011] TASGAB 28
•22 December 2011
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
Neutral citation: KC (Emergency Guardianship) [2011] TASGAB 28
Application by BC for an Emergency Guardianship Order for KC
Anita Smith (President)
Date of Order: 22 December 2011
Guardianship – application for emergency order – circumstances of urgency - elderly woman removed from residential care by an attorney – left alone without adequate support or nutrition
Enduring powers of attorney – emergency powers - inability to meet aged care fees – need to support the decisions of the guardian
Guardianship and Administration Act 1995 s. 20, 65
Powers of Attorney Act 2000 s. 33
NPG (Review Enduring Power) [2011] TASGAB 9
On 15 December 2011, BC applied for the appointment of a guardian for KC pursuant to emergency provisions in section 65(2) of the Guardianship and Administration Act 1995 (the Act).
The Guardianship Order:
Before making an order pursuant to section 65(2), the Board must be satisfied that there may be grounds for making a guardianship order and that it is proper to do so, by reason of urgency. The Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as the Board may think appropriate, and may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances.
The grounds for making a guardianship order, as set out in section 20 of the Act, are that the proposed represented person (a) is a person with a disability, (b) is unable by reason of the disability to make reasonable judgments in respect of all or any matters relating to his or her person or circumstances and, (c) is in need of a guardian. Before making an emergency guardianship order, the Board must be satisfied that these grounds may be satisfied and of the urgency of the situation.
The applicant is a registered medical practitioner practising in North East Tasmania where KC lives. In her application she noted that KC has dementia which impairs her ability to understand the consequences of her and others’ actions. She noted that she has an impaired capacity to forward plan and process information. She also noted that KC is incapable of caring for herself. Given the applicant’s professional qualifications, the Board considered that there was sufficient evidence that KC is a person with a disability and is unable by reason of that disability, dementia, to make reasonable decisions in respect of significant matters relating to her person and circumstances or her estate.
BC’s application cast doubts upon the sufficiency of care provided to KC by her son, LC, when KC lived independently. Recently, KC had moved to XXXX at XXXX, but the applicant noted that LC had removed KC on 12 December 2011 when he received an account for Aged Care fees which he considered to be unaffordable. BC stated her concern that LC leaves KC unattended for significant periods of time and that this was inappropriate for her needs. According to BC, LC is KC’s attorney pursuant to an enduring power of attorney. A search revealed that he is one of three joint but not several attorneys.
On 16 December 2011, the Board made enquiries of the Director of Nursing at XXXX. The outcome of those enquiries was recorded in the following email:
“Thank you for your assistance this morning.
I note your advice that, if a guardian is appointed, XXXX would have a place available for KC to return to should a guardian decide that was appropriate. However I also note that KC is ambulant and physically healthy and it would be very difficult to stop her leaving again if she should choose to do so. Additionally, while you are aware of concerns by family members that the Aged Care fees are too high, you are not aware of any instances of physical abuse and do not hold concerns about KC being at home.
You also mentioned that staff have reported to you that the home environment is appropriate and hygienic. We agreed that if XXXX could not enforce the guardian’s decision, the only other option would be for the guardian to have her admitted to the LGH but as she is not in need of treatment, that seems an unlikely prospect also.
I note that your preferred course is to send a community options person to speak with KC and her family about possible respite and home help options.
I attach for your information the application by BC.
As discussed I attach the emergency application form which you could complete and return to the [email protected] address should any emergencies arise over the weekend. I have copied this email to Kylie Hillier (Office of Public Guardian) in case of an appointment over the weekend. However at this stage I prefer your approach of having a staff member visit and discuss options to the prospect of appointing an emergency guardian whose decisions may be unenforceable and possibly unnecessary at this stage.
As the email notes, at that point in time, the Board was not satisfied of the need for a guardian, nor the urgency of the situation, particularly given that such appointment may be futile.
An email sent on behalf of BC to the Board on 21 December 2011 expressed her disquiet about the decision not to grant an emergency order at that stage and also noted that LC is “volatile and abusive” and that Police had been “involved regarding his abuse in the past” (abuse of whom was not stated, though it infers KC). BC urged further enquiries with the Aged Care Assessment Team (ACAT) and criticised the Board’s reliance on the evidence of a person who is not a medical professional to determine the application. BC also faxed a copy of an ACAT report dated 18 August 2011 which confirmed that KC requires permanent high level care.
The Board considered all of the above issues to be very serious. Such issues arise with unfortunate frequency before the Board and, where the evidence is able to be tested in a hearing, will often give rise to the appointment of a guardian. However, while serious, the circumstances were not sufficiently urgent, in the Board’s view, to warrant the making of an emergency order at that point.
On 22 December 2011, the Board received a telephone call from a pharmacist. In that call the Board’s Investigator noted that the pharmacist had engaged a taxi driver to deliver medications to KC. The taxi driver had reported that, when medications were delivered, KC was at home alone and reported that she had been alone since she was removed from XXXX on 12 December 2011. The pharmacist noted that, due to her confusion, KC had telephoned the pharmacy three times a day to enquire about taking medication. She had reported that she did not know how she was going to get food and that she intended to cease taking the medications that were supplied to her in a Webster Pack.
The report from the pharmacist was at odds with the report by the DON at XXXX and consistent with BC’s concerns about the sufficiency of KC’s care outside of XXXX. That call added the following factors to the earlier application that:
(i)KC had reported being alone for 10 days and was noted to be alone at home despite requiring high level care,
(ii)She had stated that she was without adequate food, and
(iii)She had stated that she would cease taking her medication or was, at best, deeply confused about her daily medication regime and liable to make mistakes which could affect her health and wellbeing.
These factors, on top of the earlier concerns, added a level of urgency to KC’s situation which, in the view of the Board warranted the appointment of an emergency guardian to assess KC’s safety at home and to determine which form of accommodation would be most appropriate to meet her care needs.
The Administration Order:
Section 65 of the Act provides:
(4)(c) the Board may make an administration order in respect of the estate of a person who is the donor of an enduring power of attorney in force under Part 4 of the Powers of Attorney Act 2000, if he or she is of or over the age of 18 years.
Section 33(4) of the Powers of Attorney Act 2000 states:
(4) When the Board considers it proper to do so by reason of urgency, the Board may suspend the operation of an enduring power of attorney and, on doing so, the Board may –
(a) appoint the Public Trustee or any other person as a substitute attorney; and
(b) make such other orders, and give such other directions, as to the exercise of the power as it thinks fit.
(5) In the exercise of its powers under subsection (4) –
(a) the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as may be appropriate; and
(b) the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances.
In appointing a guardian for KC, the Board was cognisant of a high possibility that the guardian may elect for KC to move back to XXXX. Noting that LC is one of her attorneys pursuant to an enduring power of attorney and that he would be unlikely to agree with, and therefore fund, accommodation at XXXX or another residential aged care facility, the Board considered that the suspension of the power of attorney and the appointment of an administrator during the emergency period would also be required as a matter of urgency. Even if the other two attorneys did agree to pay such fees, they would be incapable of acting accordingly due to the terms of the power.
In addition, the Board notes that accommodation fees in residential aged care are determined according to a means-tested statutory scale. Therefore, a person with few assets and low income should still be able to afford aged care. The decision by at least one attorney that the donor could not afford aged care fees runs contrary to the Board’s experience. An inability to afford aged care fees may be due to a range of issues, such as (i) the estate being inadequately structured i.e. retaining major assets which do not generate income, or (ii) the estate being mismanaged, or (iii) the means-test assessment of the resident’s assets being in error in some material respect.
The duty of the attorneys is to ensure that the donor’s estate is being managed in the donor’s best interests. In circumstances where KC had been assessed as requiring permanent high level care some four months before, the Board would expect that competent attorneys would have taken steps to ensure that such care could be paid for. This matter is relevant to the criteria in section 65(2) as to whether there may be grounds for the appointment of an administrator.
As noted by the Board’s Deputy President in NPG (Review Enduring Power) [2011] TASGAB 9:
“Section 33(4) [POAA] appears to create an internal inconsistency in that it gives the Board certain powers with regard to the exercise of a power which it has suspended. This could be resolved by inferring various interpretations of the process intended by parliament. However it is desirable to avoid uncertainty.”
Therefore the Board considers it appropriate to suspend the operation of the enduring power of attorney pursuant to section 33(4) of the Powers of Attorney Act 2000 and appoint the Public Trustee as administrator pursuant to section 65(2) and 65(4)(a) of the Guardianship and Administration Act 1995.
Conclusion:
The Board being satisfied that there are reasons for urgency and grounds for making a guardianship order in respect of KC (hereinafter called the ‘represented person’)
THE BOARD ORDERS
That the Public Guardian be appointed as guardian of the represented person.
That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live whether permanently or temporarily.
Pursuant to section 28 of the Act, if the guardian has reasonable grounds to believe that the represented person is likely to suffer damage to her physical, emotional or mental health or wellbeing unless immediate action is taken, the guardian and the Commissioner of Police (or his delegate) and/or the Secretary of the Department of Health and Human Services (or his delegate) may take the following measures or actions to ensure that the represented person complies with any decision of the guardian in the exercise of the powers and duties conferred by the order:
(i)keep the represented person at the place of residence determined by the guardian from time to time.
(ii)return the represented person to that place of residence should she leave it.
(iii)to use such reasonable force as is necessary to effect the guardian’s purpose
That this order remains in effect for 28 days from this date (22 December 2011).
FURTHER THE BOARD DIRECTS:
That on or before the expiry of 25 days duration of this order the Public Guardian shall report to the Board in accordance with the approved form for emergency order reports.
If a further order is required the Public Guardian is hereby directed to take all reasonable steps to ensure that an application for guardianship and a Health Care Professional Report are completed by the applicant before the expiry of the emergency order.
The Board being satisfied that there are reasons for urgency to suspend the operation of an enduring power of attorney (PA XXXX) given by KC to CKC, LXC and SDC and reasons for urgency and grounds for making an administration order
THE BOARD ORDERS
That pursuant to s 33(4) of the Powers of Attorney Act 2000 the operation of Enduring Power of Attorney registered number PA 19296, registered 14 May 2007 is suspended for 28 days.
That pursuant to s 65(2) of the Guardianship and Administration Act 1995 the Public Trustee is appointed as administrator for the estate of KC during the period of suspension of the Enduring Power of Attorney number PA XXXX.
That on or before the expiry of 25 days duration of this order The Public Trustee shall report to the Board in respect of any decisions or transactions made on behalf of KC pursuant to this order.
That this order remains in effect for 28 days from this date (22 December 2011).
Anita Smith
PRESIDENT
Statement of reasons requested 8 January 2011 by CC (attorney) delivered 13 January 2012.
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