KH (Guardianship)

[2009] TASGAB 5

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

KH on the application of FN

Neutral Citation: KH (Guardianship) [2009] TASGAB 5

REASONS FOR DECISION

Susan Hill (Chair)
Kate Brown (Member)
Leon Peck (Member)

3rd April 2009

Guardianship – role of guardian – role of ‘person responsible’ – need for a guardian
Guardianship and Administration Act 1995 section 4, 20, 25

1. Background to Application

KH is an 85 year-old lady who resides with her daughter, FN, the applicant, and FN’s husband.  She formerly resided in a nursing home in New South Wales, but was brought to Tasmania by the applicant.  KH has a severe type of dementia and, whilst in New South Wales, was the subject of a guardianship order and a Financial Management order made by that state’s Guardianship Tribunal.

2. Disability

The Health Care Professional Report was prepared by Dr. Andrew Clarke. He gave a diagnosis of dementia and confirmed that KH was incapable, by reason of her disability, of making decisions for herself. He also noted that she had been assessed by the Aged Care Assessment Team, although that report was not available at the hearing.
FN confirmed the seriousness of her mother’s illness, describing it as Lewy Bodi dementia. She also gave quite a deal of anecdotal evidence of her mother’s symptoms and incidents arising out of them to illustrate the difficulties which she faces and the extent of the care which she is required to give.

The Board members had no difficulty in finding that KH has a disability and is incapable of making decisions.

3. Need for a guardian

FN was asked by the Board to explain the reasons for her application and why she felt that there was a need for a guardianship order.  She stated that there had been a guardianship order in New South Wales and again reiterated the effort and difficulties she has in caring for her mother.  However, she felt that it was her duty and that she wanted to do it.  On further questioning, it became apparent that the only area in which she feels unable to move forward at present is the issue of future accommodation, that is, if her mother needs to go into a nursing home.  At present she makes all other decisions, regarding her mother’s life, for example: decisions about medication and day to day decisions.

Initially, the Board had assumed that the procuring of accommodation was imminent, especially as FN said that KH had been assessed by ACAT as needing high care, but apparently she has not as yet been able to get her mother’s name onto a waiting list.
This is the reason that FN believes that a guardianship order is necessary, because she states that nursing homes (she said three) will not countenance any application for her mother unless she is the guardian.

Having said that, she could not put any time frame on when she might wish her mother to live in a home, saying it depended on the progression of her illness.

4. Discussion

The Board members explained to FN that she was in fact the “person responsible” for her mother within the meaning of the Guardianship and Administration Act 1995.  She is her daughter and cares for her mother on a full-time basis and makes all necessary decisions in this role.  Members could not understand why, in this role, FN was not able to deal with nursing homes, pointing out that the vast majority of persons were placed in care by a person responsible, as opposed to a guardian.  She said that people at the Guardianship Registry had tried to explain this and that she could not understand, as she had been guardian of her mother in New South Wales and assumed that she would be automatically so in Tasmania as she was the one who looked after and devoted her time to KH.

The Board also pointed out that according to the Act and practice, the need must be imminent or immediate, not at some unspecified time in the future.  FN responded by saying that she could not specify a time if she could not get her mother on any waiting list.  The possibility of her applying for an emergency guardianship order when accommodation was eventually finalized was also discounted by her as she reiterated and was adamant that nursing homes would not discuss placement with her without a guardianship order.

Finally, members advised FN that if any order were to be made it would be limited to accommodation, expiring when the matter was settled, as this seemed to be the only matter over which she did not already make and take responsibility for decisions. She again became agitated saying that she had been a full guardian in New South Wales and could not see what the problem in Tasmania was.

5. Conclusions

After hearing FN’s description of her mother’s illness and the extensive care which she gives her, it was satisfied that she is the “person responsible” under the Guardianship and Administration Act 1995, on a number of criteria. She has the care of her mother (section 4(c)(iii)) and she is her daughter (section 4(c)(iv)). Also her account of the care she gives is no doubt over and above what is provided by many persons responsible. Accordingly, members were at a loss to understand, when FN has such a role, why she cannot deal with the nursing homes and finds it hard to understand that the homes would refuse to consider her needs in this situation, or even inform her that a guardianship order is a necessary pre-requisite. They had tried to explain this to FN, but she was adamant that she had been told this and that she wanted a guardianship order as she was the one who had taken responsibility for and cared for her mother. She had become quite agitated at times and the members could see that the very matters which make her the person responsible were the same factors which had convinced her that she should be her mother’s guardian.

The Board could not see on the matters raised by FN that there is any immediate need for a guardianship order.  She is her mother’s carer, daughter and as such the person who can make decisions for her. However, on her evidence, she has had trouble dealing with nursing homes.  The Board could not see why this would be the case, but it had no reason to doubt her.  The Board decided, in an attempt to assist FN, to appoint the Public Guardian as guardian of KH, with powers and duties limited to accommodation, in the hope that the difficulties she has outlined can be remedied.  It may be that this will only need to be a very short-term appointment as there seem to be no other matters which need addressing.

6. The Board Orders:

1. That the Public Guardian be appointed as the represented person’s guardian;

2. That the guardian’s powers are limited to decisions as to where the represented person is to live whether permanently or temporarily and to any matters incidental and relevant to that power;

3. The order remains in effect until 2^nd April 2012.

Susan Hill  Kate Brown  Leon Peck
CHAIR  MEMBER  MEMBER