KG (Emergency Guardian)
[2010] TASGAB 18
•6 October 2010
GUARDIANSHIP AND ADMINISTRATION BOARD
KG – an application for the appointment of an emergency guardian for KG
Neutral citation: KG (Emergency Guardian) [2010] TASGAB 18
REASONS FOR DECISION
Colin McKenzie (Deputy President)
6 October 2010
Guardianship – Application for emergency order –Guardianship order – Administration order - enduring power of attorney –removal of Represented person from one State (Vic.) to another (Tas.) – Proceeding commenced in another State
Guardianship & Administration Act 1995 Section 65
An undated application made by KG in respect of XG (Mr G) was received by the Board on 29 September 2010.
The applicant proposed that an emergency guardianship and emergency administration order should be made under s 65 which provides;.
65. Emergency orders
(1) Where the Board considers it proper to do so by reason of urgency, the Board may in respect of a represented person make any order or give any direction considered appropriate in the circumstances.
(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; or
(b) The Public Trustee as administrator of his or her estate –
and in either case 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.
(4) In the exercise of its powers under this section –
(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 the Board may think 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; and
(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.
(4A) The powers and functions of the Board under this section may be exercised and performed by one or 3 members of the Board as may be determined in each case by the President.
(5) An order under this section –
(a) remains in effect for such period as the Board determines but not exceeding 28 days; and
(b) may be renewed but only once for a further period not exceeding 28 days.
The grounds advanced for making the order are;
that Mr G had been recently removed from a temporary facility in Melbourne by his daughter B and taken to Tasmania.
He was claimed to have been found in a high state of distress and was visibly suffering emotionally and physically. The particulars of his suffering were not provided.
It was claimed he stated clearly that he didn’t want to remain in the facility, but if he was unable to return to his home due to his wife no longer wanting him there that he wanted to return to Tasmania.
The application acknowledges that “X’s discharge from the facility was against the wishes of his wife and daughter M”. The applicant said “there is now deep concern that there will be an attempt to remove him from Tasmania against his will or under false pretences”.
The applicant states “we are wanting to uphold X’s rights to make choices about his future which has clearly not been respected by his wife or daughter M”.
On 15 May 2008 a general enduring power of attorney was registered by the Recorder of Titles in Tasmania by which Mr G appointed his three daughters B, K and F and the applicant as his joint and several attorneys. According to that document Mr G’s three daughters then lived in Victoria.
Emergency order for Administration
No evidence has been provided by the applicant indicating that there is any need or justification for the appointment of an administrator. Section 53 of the Guardianship & Administration Act 1995 provides that “it is not competent for the Board to make an administration order while there is an enduring power of attorney in place except when an emergency order is made.
An emergency order should not be used to displace an enduring power of attorney unless there is some reason of urgency and in my view unless there is some basis for thinking that ultimately the enduring power of attorney could be the subject of an order under Section 33 of the Powers of Attorney Act 2000. No such basis has been advanced by the applicant. Accordingly in respect of the application for an administration order no basis in fact for the making of an emergency order has been established.
Emergency order for Guardianship
From the information received the Board considers that the applicant has a proper interest in the matter for the purposes of Section 65(3).
Pursuant to Section 65(4) the Board considered the contents of the written application and the following documents:
Enduring Power of Attorney (PA25686)
Letter (with attachments) dated 4 October 2010 from IG
Letter (with attachments) dated 5 October 2010 from KL
Report from Board’s Investigator
May there be grounds for making a guardianship order?
The grounds for making a guardianship order Section 20 of the Act are prima facie made out, namely that Mr G is a person with disability and is unable by reason of the disability to make reasonable judgments in respect of matters relating to his or her person or circumstances and is in need of a guardian.
In respect of disability the Board relies on evidence provided by a report dated 28 September 2009 written by NU, who is a geriatrician, a letter from an Aged Care assessment service dated 20 August 2010 with an attached ACAT assessment dated 20 August 2010.
If a guardian were to be appointed on the evidence an order for only limited guardianship is likely to be required, that order limited to the issue of determining the place of proposed represented person’s residence.
Circumstances of urgency
The circumstances of urgency advanced by the applicant are set out above. The applicant failed to disclose in the application that proceedings for Guardianship had already been commenced in VCAT for hearing on 15 October 2010, notice of hearing having been issued on 23 September 2010 by VCAT, six days before this application was received by the Board.
The applicant does not provide any evidence regarding the cause of Mr G’s alleged distress and emotional and physical suffering. Nor does the applicant indicate any inquiries made of any other person concerned with Mr G’s care with regard to the response to that distress, or Mr G’s living requirements. There is no medical evidence challenging the assessments which have been undertaken in Victoria and no lay evidence challenging the conclusions of those assessments.
When appointing a guardian this Board would be bound by Section 21(2) of the Guardianship & Administration Act Tasmania which requires;
21. Persons eligible as guardians
(2) In determining whether a person is suitable to act as a guardian of a represented person, the Board must take into account –
(a) the wishes of the proposed represented person so far as they can be ascertained; and
(b) the desirability of preserving existing family relationships; and
(c) the compatibility of the person proposed as guardian with the proposed represented person and with the administrator (if any) of his or her estate; and
(d) whether the person proposed as guardian will be available and accessible to the proposed represented person so as to fulfil the requirements of guardianship of that person.
There is insufficient evidence suggesting that appointing a guardian based in Tasmania would adequately or properly address those requirements.
The investigation undertaken by a member of the Board’s staff did not reveal any reasons advanced by the applicant KG or BX whom the application identified as the person who had removed Mr G from the temporary facility in Victoria as advancing any reasons for their action other than a desire to uphold Mr G’s rights to make choices about his future.
According to a letter written to the Board by IG dated 4 October 2010 (Mr G’s wife) they relocated to Victoria on 20 May 2010, a little over 4 months ago. Since then Mr G has been assessed by a number of specialists in Victoria. Mrs IG alleges that Mr G was transferred to Tasmania without adequate arrangements being made for provision for his needs for medication and without prior consultation with other members of Mr G’s family, in particular herself as his wife.
No reasons have been advanced by the applicant indicating why VCAT cannot adequately deal with the issues that arise in connection with Mr G’s guardianship at the hearing on 15 October 2010. An order made by VCAT may be recognised in Tasmania under Section 81A of the Guardianship & Administration Act.
In the circumstances the Board does not consider any sufficient “reason of urgency” has been established by the applicant or is warranted by the evidence available to the Board.
The application is therefore dismissed.
Colin McKenzie
Deputy President
The applications:
On 13 September 2010 the Board received an application from Health West RPHS (a Division of the Department of Health and Human Services (“the Department”)) for the appointment of a guardian and an administrator for TX, together with the requisite Health Care Professional Report by Dr Takavada Mapfumo, pursuant to sections 20 and 51 of the Guardianship and Administration Act 1995. Two days later the Board also received an application for the appointment of a guardian pursuant to the emergency provisions in section 65 of the Act.
Because it was seeking further information about the application, the Board had not made a decision on the emergency application when a further request for an emergency order was received on 22 September 2010. The main concern of the applicants for emergency orders (both of whom are representatives of the Department) was that TX was in hospital and may seek to discharge himself contrary to the advice of his treating team.
Evidence of a disability and capacity to make relevant decisions:
TX is a 66 year old man who, according to the report provided by Dr Jane Tolman dated 15 November 2009, has a range of disabilities, but had the ability to make decisions about his person and circumstances although his ability may be impaired from time to time. Dr Tolman reported a functioning system of care for TX. On 22 September 2010 the Board received a later medical report by Dr Jane Tolman dated 30 July 2010 when she reported a deterioration in TX’s care arrangements and cognitive functioning. However the report also noted the TX disagreed with most of those assertions and had an alternative version of the events so reported.
A report by Dr Takavada Mapfumo dated 2 September 2010 reported that TX’s condition had deteriorated. Dr Mapfumo reported that TX’s condition is episodic. He also stated that “he seems capable” of making decisions about where he should live temporarily or permanently.
The most recent evidence presented to the Board did not support the contention that TX was incapable of making reasonable decisions about where he should live temporarily or permanently. Therefore the evidence available to the Board suggested that he may be capable of making a reasonable decision about discharge from hospital.
Evidence of urgency and a need for a guardian:
Enquiries by the Board’s Investigator on 15 September 2010 with regards to the first emergency application noted that TX had not been discharged and was not refusing treatment.
On 21 September 2010 Mr SS contacted the Board indicating that he acted for TX who wished to participate in any decision making processes regarding the appointment of a guardian or an administrator and was well enough to understand the nature and effect of such proceedings.
The main decision, being whether or not he ought to be discharged from hospital appeared from the available evidence to be a decision of which he was capable. All other matters do not appear to be urgent.
There is also a possibility that TX may have capacity to appoint an enduring guardian and an enduring power of attorney, so that may present as a less restrictive alternative to the appointment of a guardian and administrator by the Board.
This is a matter that should proceed to a hearing so that TX has an opportunity to hear and test the evidence put forward in the application and put his own evidence if he should wish.
Conclusion:
The application fails because the allegedly urgent issue is one that it appears TX has capacity to decide. There is also a possibility that there may be less restrictive alternatives to the appointment of a guardian and an administrator. Additionally, TX’s wishes have been clearly explained by his legal representative and it is appropriate that he be given an opportunity to contest these applications in a hearing.
The emergency applications dated 15 and 22 September 2010 are dismissed.
Anita Smith
PRESIDENT
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