KNWT (Review Guardianship and Administration)

GUARDIANSHIP AND ADMINISTRATION BOARD

BURNIE

KNWT (Review Guardianship and Administration) [2016] TASGAB 16

REASONS FOR DECISION

Leanne Topfer, Chair

Mary Davies, Member
Libby Beyerle, Member

Hearing: 8 December 2016

Review Guardianship and Administration – disability – extended to include medical decisions

Guardianship and Administration Act 1995 s. 58, 67

This is an application under section 67 of the Guardianship and Administration Act 1995 for review of a guardianship and administration order.
The represented person is KNWT who has been diagnosed as suffering from Huntington’s disease with cognitive impairment.
On 30 August 2012 the Board appointed the Public Guardian as KNWT’s guardian pursuant to Part 4 of the Guardianship and Administration Act 1995 (the Act). The order was reviewed on 6 December 2013 and an order was further made that the Public Guardian continue as KNWT’s guardian for a period of three years until 5 December 2016. The order was limited to decisions concerning where KNWT was to live either permanently or temporarily.
On 30 August 2012 the Board appointed the Public Trustee as KNWT’s administrator pursuant to Part 7 of the Act. The order was also reviewed on 6 December 2013 and an order was further made that the Public Trustee continue as KNWT’s administrator for a period of three years until 5 December 2016.
An application for review of the guardianship order was made by the Public Guardian and similarly an application for review of the administration order was made by the Public Trustee and was heard on 8 December 2016. Present at the review was Mr Graham Stagg from the Public Trustee, HTE the facility manager where KNWT resides, Ms Jess Tidey from the Huntington Support Service and KNWT’s aunt KB.
The Board had available for its consideration:
6.1the applications for review;
6.2the health care professional report from KNWT’s treating medical practitioner Dr Nerrelie Cann dated 1 November 2016;
6.3the Guardian’s report to the Board dated 28 September 2016;
6.4the Public Trustee’s report dated 4 November 2016; and
6.5two letters from the neuro-psychiatrist Ms Melinda Kemp dated 7 April 2016 and 28 September 2016.
The Board is satisfied that KNWT has a disability within the meaning of the Act. The Health Care Professional Report indicated that KNWT has Huntington’s disease with cognitive impairment. The report indicated in part:
“Jayne has limited insight to the cognitive deficits which have been demonstrated on neuro-psych testing and continue to affect behaviour. Alcohol use complicates cognitive effects and negatively impacts behaviour including risks of falls and slurring of speech. Jayne has little insight into this.”
As a result of the material provided, which was confirmed by Mr Stagg, the Board is of the view that there is a continuing need for an administrator. KNWT is not realistic when managing her financial affairs. The report from the Public Trustee indicates as follows:
“KNWT is unable to grasp basic budgeting concepts including the amount of expenditure versus her income. At present spending levels the shortfall between income and expenditure is about $22,000.00 per year. While it is important that KNWT is able to enjoy some quality of life and the deficit may be sustainable for a short period of time, the situation requires constant monitoring. At some future time it may be necessary to substantially reduce the amount presently being spent on comforts.”
An order had been previously made authorizing gifts up to a total of $1,200.00 per annum from KNWT’s property pursuant to section 58 of the Act. The Public Trustee considered it was appropriate that this order continue because this is what KNWT would have liked had she not had her disability. The Public Trustee for instance has paid for KNWT’s daughter Morgan to visit her so that they could spend some time together. The cost of the airfares and accommodation amounted to $1,178.00. The Board also considered this is appropriate to continue.
The existing guardianship order was limited to decisions concerning where KNWT is to live either permanently or temporarily. The Public Guardian’s report to the Board and the Health Care Professional Report indicates that KNWT remains living at Mt St Vincent Nursing Home and is continuing to deteriorate. The report from the Public Guardian indicates that she does not want to live there and regularly says she wants to return home. However her home was sold in 2014 but that KNWT forgets this at times. The evidence before the Board indicates that KNWT drinks excessive amounts of alcohol which is having a detrimental impact on her mental state. The neuro-psychiatrist Ms Melinda Kemp saw KNWT on 28 September 2016 and indicated she was of the view there was clearly a role for a Guardian to intervene and limit the amount of alcohol she was able to buy. KNWT was also choking while drinking the wine and admitted to having falls but refused to consider having additional medication to treat the symptoms. Ms Tidey from the Huntington Support Network and KNWT’s aunt both supported an extension to the guardianship order to medical decisions.
Taking all matters into account the Board was of the view that it was appropriate to continue both with the guardianship and administration order and to extend the guardianship order to include medical decisions.

THE BOARD ORDERS

That The Public Guardian continue as the represented person’s guardian.
That the powers and duties of the guardian are limited to:

a)decisions concerning where the represented person is to live either permanently or temporarily, and
b)consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment.

That the order remains in effect to 1^st December 2019.

AND

THE BOARD ORDERS

That the Public Trustee continue 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.
The administrator is authorised to distribute gifts from the represented person’s estate to a maximum of $1200.00 per year. Such gifts are subject to the administrator’s discretion and are only applicable providing that there are sufficient funds in the estate.
That the order remains in effect to 1^st December 2021.

Dated this 18 day of January 2017

Leanne Topfer	Mary Davies	Libby Beyerle
Chair	Member	Member

KNWT (Review Guardianship and Administration) involved a review of the guardianship and administration arrangements for an individual, focusing on the scope of decision-making powers. The dispute centred around the extent of the guardian's authority to make medical decisions on behalf of the represented person, with the Public Guardian and Public Trustee acting in these roles. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the guardianship order should be expanded to include medical decision-making powers and what limitations, if any, should be imposed on the Public Trustee's authority over the represented person's estate. Specifically, the court had to determine whether the Public Guardian should have the authority to consent to or refuse health care on behalf of the represented person, and whether the Public Trustee should be authorised to distribute gifts from the estate, subject to certain conditions.

The court considered the relevant statutory provisions and the overarching principle of acting in the best interests of the represented person. It concluded that the Public Guardian should be granted the authority to consent to or refuse health care, as this aligned with the principle of acting in the best interests of the represented person. The court also decided that the Public Trustee should be authorised to distribute gifts from the estate to a maximum of $1200.00 per year, subject to the availability of sufficient funds and the exercise of discretion. These decisions were made to ensure that the represented person's autonomy and welfare were protected while allowing for flexibility in managing their affairs.

The court's orders were that the Public Guardian continue as the guardian, with their powers and duties limited to decisions regarding residence and consent to health care. The Public Trustee was to continue as the administrator, with their powers and duties confined to those specified by the relevant Act, and authorised to distribute gifts from the estate under the conditions outlined. These orders were to remain in effect until specified dates, providing a clear framework for the ongoing management of the represented person's affairs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established