KDT (Guardianship and Administration)
[2011] TASGAB 24
•21 September 2011
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
KDT – Application for the appointment of a guardian and an administrator on the application of FT
KDT (Guardianship and Administration) [2011] TASGAB 24
REASONS FOR DECISION
Anita Smith (President)
Kate Brown (Member)
Rowena Holder (Member)
Dates of hearing: 21 September 2011
Guardianship and administration – person with a disability – incapacity to make reasonable decisions about personal or financial matters – best interests of the person
Guardianship and Administration Act 1995 sections 6, 20, 51
KDT is a retired General Practitioner aged 81 years. He lives with his wife in the family home and has two sons and a daughter. He became the subject of an emergency guardianship order on 18 July 2011 when Old Age Psychiatrist, Dr. Bakas, was seeking his temporary admission to the Roy Fagan Centre. On 1 September 2011 the Board received an application from KDT’s son, FT, for the appointment of a guardian and an administrator.
Before appointing an administrator, the Board must be satisfied that KDT is a person with a disability, that his disability renders him incapable of making reasonable judgments about his estate and that he is in need of an administrator (section 51 of the Guardianship and Administration Act 1995 (the Act)). If satisfied of each of these matters, the Board can appoint an administrator according to the criteria in section 54 of the Act.
Before appointing a guardian, the Board must be satisfied that KDT has a disability that renders him incapable of making reasonable judgments about his person and circumstances and is in need of a guardian (section 20 of the Act). If satisfied of these criteria, the Board must assess the eligibility of any proposed guardians according to criteria in section 21 of the Act.
The Board heard the application on 21 September 2011. KDT declined to attend despite urging and advice from his sons and daughter. The hearing as attended by:
FT - son/applicant
BN - daughter
OT - son
Christine Stacey - The Public Trustee
Kylie Hillier and Patricia Clarke - The Public Guardian
The Board had available to it the following documents:
a)Application dated 30 August 2011 with notes of Family Meeting 28 July 2011 attached
b)Health Care Professional Report by Dr. Bakas dated 1 September 2011
c)Application by Dr Bakas for an emergency guardianship order dated 18 July 2011
d)Decision of the Board dated 18 July 2011
e)Reports by the Public Guardian dated 15 August 2011 and 15 September 2011
f)Aged Care Assessment Team Report dated 18 July 2011
g)Commonwealth Bank account information dated 14 September 2011
h)Letter from KDT’s solicitor dated 1 September 2011
i)Letter Dr C.K. Khong dated 12 September 2011
j)Report of GAB Investigator dated 16 September 2011
k)Email from KDT to the Board dated 18 September 2011
l)Email from Dr. Matt Fasnacht to the Board dated 20 September 2011
m)Admission notes, assessments and nursing notes 11-12 July 2011 Launceston General Hospital
n)Nursing notes 21 July 2011 – 25 July 2011 Older Persons Mental Health
o)Discharge summary (Older Persons Mental Health) dated 2 August 2011
With the exception of documents 5(k)-(o) inclusive, which arrived only shortly before the hearing, all documents were forwarded to KDT’s solicitor prior to that solicitor indicating that he had instructions for different matters and he was not representing KDT with regard to this application. It is clear from KDT’s email to the Board that he had access to the documents sent to his solicitor.
Does KDT have a disability?
KDT denied having a disability and suggested that medical practitioners had issued false certification for which there would be professional disciplinary consequences. KDT also noted an absence of particular symptoms (such as visual hallucinations and the inability to write) and concluded that he could not have dementia. However, the Board assessed notes and reports from Dr. Khong, his former general practitioner, psychiatric registrar Dr. Fassett and psychiatrists, Dr. Matthew Fasnacht, Dr. Alison Cleary, Dr. Joanna Bakas and Dr. Martin Morrissey as being genuine diagnoses of dementia based on appropriate criteria. Accordingly, the Board was satisfied that KDT is a person with a disability within the meaning in section 3 of the Act and for the purposes of sections 20 and 51 of the Act.
Does KDT’s disability render him incapable of making reasonable judgments?
Dr. Bakas noted that KDT has cognitive impairment resulting from his dementia. She reported that, arising from his dementia, he experiences deficits in relation to his orientation to person, place and time (sometimes), his receptive communication, his impulse control and his ability to plan and reason. She provided examples that he had: (a) taken his medication inappropriately, putting his health at risk, (b) medicated his wife with an unprescribed opiate patch, placing her life at risk, and (c) continued to drive despite being advised that it was no longer safe. Dr. Bakas reported that KDT has difficulty in manipulating financial information and making decisions about his estate. She also noted that his memory difficulties would affect his ability to make financial decisions.
Dr Fasnacht repeated the above examples in some detail and also mentioned that KDT had taken his sick cat to the GP instead of the vet. Dr Fasnacht reported that KDT had turned away community nurses who attempted to care for his wife in their home and described this as a product of dysexecutive syndrome. He also stated that when hypoxic (which occurs relatively frequently due to KDT’s cerebrovascular disease and his chronic hypoxia from incurable lung disease) he can become transiently psychotic. Dr. Fasnacht also noted concerns that KDT was undertaking online banking transactions.
KDT’s email noted his history of successfully managing his affairs for over 60 years and stated that nothing had changed. He also noted that he has above average intelligence and therefore suffered no impairment. A number of the reports and notes concurred that KDT has very high baseline intelligence and would score better on tests for intelligence than most of the community.
Sadly, despite a high level of verbal and intellectual ability, KDT’s disability manifests itself, in the Board’s view, in impulsivity and difficulties in planning and reasoning. It is consistent with a diagnosis of dysexecutive syndrome in dementia that a person can continued to display high intelligence but be prone to irrational decisions. Accordingly, the Board was satisfied that KDT is incapable by reason of his dementia of making reasonable judgments about his person and circumstances and his estate.
Is KDT in need of a guardian?
By the time of the hearing, KDT had been discharged from the Roy Fagan Centre to his home. Although there had been initial difficulties in KDT agreeing to admit community care nursing staff to the home, at the time of the hearing, he was allowing such nurses to attend himself and his wife. There remained a concern that this decision could change from day to day according to KDT’s mood. The applicant had temporarily resolved the issues relating to his driving by placing a wheel lock on KDT’s motor vehicle. KDT sought the Board’s intervention to remove the wheel lock and restore his driving licence.
The Board was satisfied that KDT was appropriately accommodated and had access to appropriate medical treatment at the time of the hearing. The Board considered that a guardian was only required to ensure that any future refusals of personal care could be countermanded and to ensure that KDT does not attempt to drive his motor vehicle. Both matters are matters that promote and protect his best interests, even though they are contrary to his wishes. Therefore the Board made a guardianship order limited to those subjects.
Is KDT in need of an administrator?
The Board heard evidence that KDT has an unregistered enduring power of attorney at his solicitor’s office which appoints his wife as attorney. That appointment is now considered, by her family, to be unsuitable given her very poor state of health. Usually the appointment of a competent attorney would negate the need for an administrator; however this instrument does not have that effect as it has not been registered and would be unsuitable if registered.
KDT’s joint estate with his wife consists of their house and car, home contents and a savings account with $52,000.00. Witnesses at the hearing indicated that most of KDT’s affairs are managed by an accountant at his instructions. Day to day management of his affairs appears to have been relatively controlled apart from concerns about internet banking.
The Board also noted that KDT has recently issued instructions to solicitors to issue or investigate proceedings against persons who had detained him at the Roy Fagan Centre and was threatening other legal proceedings against medical practitioners. While the Board considered it appropriate that he receive legal advice to protect and promote his human rights, the Board held concerns that, if irrational, KDT may commence unmeritorious litigation over which an administrator may need to take control to prevent excessive costs.
The need for an administrator arose, in the Board’s view, to prevent irrational decisions having negative effects on KDT’s estate and to promote his best interests. For instance, there was a concern that KDT may avoid the wheel lock on the motor vehicle by buying a new car. His son had already been in contact with car sales people that KDT had approached. The Board was satisfied that KDT was in need of an administrator to ensure that irrational financial decisions do not have a negative impact on KDT’s estate. The Board also considered that an administrator is necessary to take possession of the unregistered enduring power of attorney to avoid the uncertainty that would arise at law if that instrument should be registered. The Board issued a direction in that regard.
Appointment of a guardian and an administrator:
Initially the application sought the appointment of family members as guardian and administrator. However, events since KDT’s admission to the Roy Fagan Centre had been acrimonious and his family members withdrew their nominations with a view to preserving family relationships. This left only the statutory agencies for appointment. Accordingly, the Board considered it appropriate to appoint the Public Trustee as administrator and the Public Guardian as limited guardian.
Conclusion:
After hearing an application for the appointment of a guardian and an administrator in respect of KDT (hereinafter called the ‘represented person’)
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 his estate, and his person and circumstances; and
is in need of an administrator and a guardian;
THE BOARD ORDERS
That The Public Trustee be appointed as the represented person’s administrator.
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 administrator is directed to take possession of the Enduring Power of Attorney from Douglas & Collins.
That the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to:
Engagement of services for the represented person including the authority for services to enter his home.
Taking all reasonable steps to prevent the represented person from driving a motor vehicle.
That the order remains in effect to 20 September 2014.
Anita Smith Kate Brown Rowena Holder
PRESIDENT MEMBER MEMBER
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