KHX (Guardianship and Administration)
[2019] TASGAB 16
•28 June 2019
CITATION: | KHX (Guardianship and Administration) [2019] TASGAB 16 |
HEARING DATE(S): | 28 June 2019 |
DATE OF ORDERS: | 28 June 2019 |
DATE OF STATEMENT OF REASONS: | 24 July 2019 |
BOARD: | Mr J. Otlowski Ms L. Wall Ms A. McKenzie |
APPLICATION | Guardianship & Administration |
CATCHWORDS: | Guardianship – Administration – Term of Order |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss20, 51 |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Statement of Reasons
Background
An Application for Guardianship and Administration concerning KHX was made by Ms Hania McIver on 15 May 2019. KHX had been admitted to the Roy Fagan Centre on 7 May 2019 following the appointment of the Public Guardian as his Guardian by an Emergency Order dated 3 May 2019.
Hearing
The Board heard the application on 28 June 2019.
The persons present at the hearing were:
a.KHX;
b.Mr David Cocker, solicitor from the Legal Aid Commission of Tasmania, acting for KHX;
c.Ms Rhian Jeffes, appearing as the Applicant because Ms McIver could not attend the hearing;
d.Ms Liz Love from the Office of the Public Guardian;
e.Ms Rosemary Jurs and Ms Michelle Sullivan from the Public Trustee;
f.Dr Matthew Fasnacht, psychiatrist from the Roy Fagan Centre;
g.Ms Louella Tria, social worker from the Roy Fagan Centre;
h.Dr Kalinga, Psychiatric Registrar at the Roy Fagan Centre; and
i.Mr Dicretico, nurse aide from the Roy Fagan Centre.
The following persons participated in the hearing by a telephone link to a room at the Roy Fagan Centre:
j.NXX, wife of KHX;
k.Ms Katherine Parsissons, KHX’s case manager;
l.Dr Jillian Mee; and
m.UXN, KHX’s daughter.
Legislation
Before the Board can make an Administration or Guardianship Order, the Board in accordance with Section 20 and Section 51 of the Guardianship and Administration Act 1995 must be satisfied that the proposed represented person is a person with a disability. Concerning Guardianship, the Board must also be satisfied that the proposed represented person is unable by reason of the disability to make reasonable judgements in respect of matters relating to his or her person or circumstances. Concerning Administration, the Board must be satisfied that the proposed represented person is unable by reason of the disability to make reasonable judgements in respect of matters relating to any part of his or her estate. Further, the Board must be satisfied that there is a need for the appointment of a Guardian and/or an Administrator.
Evidence
The Board had before it a Health Care Professional Report (“HCPR”) from Dr Matthew Fasnacht dated 14 May 2019. The Board also had a copy of a report from Dr Martin Morrissey addressed to KHX’s General Practitioner Dr Tim Lickiss dated 16 April 2019. On page 1 of the HCPR, Dr Fasnacht stated that KHX had a disability, namely dementia, “mixed alcohol and vascular”. On page 2, Dr Fasnacht stated:
His worsening impulse control is due to a mixed alcoholic and vascular dementia which is causing a coarsening of pre-existing personality traits.
Dr Fasnacht also opined:
KHX is cognitively rigid meaning both he does not understand abstract problems and also cannot waiver from his own set views…
On page 4 of the HCPR, Dr Fasnacht stated:
He has refused a full cognitive screen or brain scan, but his impairments on brief cognitive testing performed previously (short term memory and executive dysfunction), marked rigidity and concrete thinking (observable), history of apathy, increasing volatility/anger, control, abuse, and threats over recent years provide ample evidence to make a dementia diagnosis.
A heavy alcohol consumption of decades, of at least 15 standard drinks a day is bound to generate cognitive impairments.
In his report dated 16 April 2019, Dr Morrissey stated:
On cognitive testing KHX has clear impairment particularly with regards to frontal lobe/executive functioning. He also has impaired short-term memory. I believe he has sufficient impairment across a range of domains to conclude that he now has a dementing illness. I suspect this is secondary to long-term alcohol misuse and it is also likely that he has a degree of cerebrovascular disease.
Dr Fasnacht also gave evidence at the hearing that was consistent with and supported the opinions in the HCPR. Dr Fasnacht stated that as a result of his dementia KHX lacked insight, had short-term memory problems, and was unable to make reasonable judgements about his care needs. Dr Fasnacht also said that because of KHX’s short-term memory problems he was unable to understand and process financial information, particularly pertaining to future accommodation options.
Mr Cocker, acting for KHX, stated that he agreed that KHX had a disability and because of that the disability was unable to make reasonable decisions in relation to his personal circumstances and his estate.
Mr Cocker stated that KHX wanted the Public Trustee to be appointed as his Administrator.
The evidence from Dr Fasnacht, Ms Love, who was acting as the Guardian under the Emergency Guardianship Order, and Ms Tria was that KHX would soon be discharged from the Roy Fagan Centre and that accommodation decisions needed to be made. Dr Fasnacht gave evidence that because of KHX’s lack of impulse control and anger management issues, it would be unsafe for him to return to his home where his wife lives, as that could result in a situation arising where KHX loses control and could become violent. On this issue, Mr Cocker stated that KHX agreed that further contact with his wife was inappropriate and was not something that he wished to pursue.
Given that KHX would soon be discharged from the Roy Fagan Centre and it was not in his best interests to return to his home there was a clear need for an Administrator to be appointed to sign necessary agreements for KHX to move to a residential aged cared facility or some other suitable form of accommodation.
Given the imminent transition from the Roy Fagan Centre to alternative accommodation there was also a need for the appointment of a Guardian to make accommodation decisions on behalf of KHX.
Mr Cocker suggested that KHX could remain at the Roy Fagan Centre on a voluntary basis, but this suggestion was not approved by Dr Fasnacht. Given the Board’s finding regarding KHX not being able to make reasonable judgements concerning issues such as accommodation, a voluntary admission to [the facility] was clearly not appropriate and a Guardian should be appointed to make accommodation decisions.
It was submitted by Mr Cocker that an Order for a duration of six months would be appropriate but Ms Love suggested that alternative accommodation might not be found within such a short period of time, and the Board was satisfied that the term of the Order should be twelve months. If accommodation could be found before that time and there was no longer a need for a Guardian, then the Guardian could apply to have the term of the Order reviewed.
It was suggested that the Guardian should have the power to restrict visits by KHX to his residence at [the address in Tasmania] where his wife lives. This submission was supported by Dr Fasnacht on the basis that it would not be in KHX’s best interests to return to the home where his ability to control his emotions might lead to a violent incident occurring, which may result in criminal charges.
The Board accepted the submission that it would not be in KHX’s best interests to return to his former home and the Board was satisfied that it was appropriate in those circumstances to give the Guardian the power to restrict visits by KHX to the residence.
Ms Love pointed out that there would be some practical difficulties in enforcing such a restriction and the Board noted that so far as the safety of his wife NXX is concerned, that can be dealt with by the application of other legislation.
Decision
On 28 June 2019, the Board ordered in respect of KHX as the Represented Person:
i.That the Public Trustee (Tas) is appointed as Administrator of the estate of the Represented Person;
ii.That the powers and duties of the Administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995;
iii.That the Order remains in effect until the 27th day of June 2020;
iv.That the Public Guardian (Tas) is appointed as the Represented Person’s Guardian;
v.That the powers and duties of the Guardian are limited to decisions concerning:
a)where the Represented Person is to live either permanently or temporarily; and
b)restricting visits by the Represented Person to the residence at [the address in Tasmania].
vi.That the Order remains in effect to the 27th day of June 2020.
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