KNWT (Review Guardianship and Administration)

[2013] TASGAB 26

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

KNWT – Application by Mental Health Services to Review a Guardianship and an Administration Order

KNWT (Review Guardianship and Administration) [2013] TASGAB 26

REASONS FOR DECISION

Anita Smith (President)
Carolyn Wallace (Member)
Lindi Wall (Member)

Date of hearing: 6 December 2013

Guardianship and administration – amendment of guardianship order to reflect the least restrictive alternative - distinction between review hearings and a grievance process – eligibility and suitability of proposed guardians and administrators – error in preferring family members’ views over the represented person’s views – preservation of existing family relationships may be achieved by not appointing a family member as guardian – requisite expertise for a proposed administrator relates to the complexity of immediate tasks

Guardianship and Administration Act 1995 s. 6, 17, 21, 54

1. On 30 August 2012, the Board appointed DNS as guardian and administrator for KNWT (the represented person) pursuant to sections 20 and 51 of the Guardianship and Administration Act 1995 (the Act).  Both orders were full orders.  On that occasion, the Board found that the represented person is a person with a disability, is by reason of that disability unable to make reasonable judgments about her person and circumstances or her estate and is in need of a guardian and an administrator.  The applicant and counsel for the represented person confirmed at the hearing that none of these grounds is under review in the current proceedings and that the only question before the Board is the identity of the guardian and administrator. 

1. The hearing of the application to review the guardianship order was convened on 6 December 2013 and the following persons attended:

   KNWT

   Sarah Campbell – Legal Aid Commission of Tasmania

   Jill Newell – Mental Health Services, Applicant

   NWT – daughter and nominee for appointment as guardian and administrator (by telephone)

   DNS – sister, guardian and administrator

   KX – sister

   SW – brother

   EW – sister in law

   KB – aunt and XXXX

   LK – St Ann’s Nursing Home

   Kylie Hillier – Office of the Public Guardian

   Anne Griffin – Public Trustee

   Lee Perry – GAB Compliance Officer

The characterization of the application to review the appointment of guardian and administrator:

1. The applicant cited the following issues as reasons for submitting the application to review the appointment of the guardian and administrator:

   ·     Lack of accessibility and availability

   ·     Breakdown of communication, e.g. will not talk to the represented person

   ·     Decisions not being made taking account of the represented person’s wishes

   ·     Finances not always available

   ·     Health care team unable to contact guardian and administrator

   ·     Other family members report concerns for the guardian and administrator health/stress issues

These allegations relate to the duties of a guardian and administrator as set out in section 27 and 57 of the Act. They also relate to the eligibility criteria for appointment under section 21 and 54 of the Act. The Board discourages review applications taking the form of a grievance procedure about the activities of a guardian or administrator as the role of investigating grievances about guardians and administrators is assigned to the Public Guardian in section 17(1) of the Act.

Therefore, the above allegations are considered in light of DNS’s continuing eligibility for appointment as guardian and administrator, not in terms of her alleged failure to perform the duties of a guardian or administrator.  It is particularly noted that there were no allegations of financial abuse or mismanagement against DNS. 

The nominees for appointment as guardian and administrator:

1. Although some parties believed that DNS had indicated she no longer wished to continue as guardian and administrator prior to the hearing, at the hearing DNS stated that she wished to continue in those roles.

1. The represented person sought the appointment of her daughter, NWT, as guardian and administrator and NWT consented to those appointments.  

1. The applicant sought the appointment of the Public Guardian and the Public Trustee as guardian and administrator respectively.

Eligibility for appointment as a guardian:

1. In reviewing the appointment of a guardian the Board must take into account: 

   (a) will the person act in the best interests of the represented person, and
   (b) is the person in a position where his or her interests conflict or may conflict with the interests of the represented person, and
   (c) is the person a suitable person to act as guardian of the represented person?

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 represented person, and
(b) the desirability of preserving existing family relationships, and
(c) the compatibility of the proposed with the represented person and with an administrator appointed for the person, and
(d) whether the guardian will be available and accessible to the proposed represented person so as to fulfil the requirements of guardianship.[1]

DNS’s nomination for continuing appointment as a guardian:

[1] Section 21 Guardianship and Administration Act 1995

1. In respect of her appointment as guardian and administrator, the represented person indicated that she no longer wished for DNS to be her guardian.  She had expressed this to Mental Health Services and to counsel prior to the hearing.  From the materials before the Board and the behaviour of the parties at the hearing, it was clear to the Board that the experience of appointing DNS as guardian had soured the sisters’ relationship and that they were no longer compatible. 

1. The allegations that DNS has not been available and accessible to fulfill the requirements of guardians are relevant to DNS’s future suitability.  However, the Board considered the represented person’s clearly expressed wishes, the fact that appointment of DNS as guardian has undermined, rather than preserved, existing family relationships and the incompatibility that has arisen in their relationship since DNS’s appointment as guardian as the main factors for DNS’s unsuitability for appointment. 

2. There was evidence before the Board that also suggested that DNS had not acted in the represented person’s best interests and was somewhat conflicted in her duties as a guardian.  Since the last hearing, the represented person had been moved, under medical advice, from the North West Coast to Hobart in the South to live in an Aged Care Facility.  The represented person is only 50 years of age and it was uncontested at the hearing that an Aged Care facility is not optimal for the represented person and it is too far from her family and friends.  DNS was adamant that she had no choice in this accommodation and the move to Hobart was entirely the decision of Dr. Jane Tolman.  She defended all other decisions taken under her guardianship on the basis that she had family consensus to make those decisions.

1. The Board had two concerns about these examples of decision making as a guardian. Firstly, the guardian had not appreciated that she had the sole authority to make accommodation decisions on the represented person’s behalf and Dr. Jane Tolman had none. Had she thought it an inappropriate placement, she had the authority and the responsibility to prevent its occurrence. Secondly, the role of a guardian is not to seek consensus amongst family members but to make a decision in accordance with the principles in section 6 of the Act. The Board considered that a self-imposed and misguided requirement to seek family consensus for decisions about the represented person conflicted with the guardian’s duties to the represented person. The Board considered that these fundamental misunderstandings of the role of a guardian could lead DNS to make future decisions that are not in the represented person’s best interests.

2. The Board does not consider that DNS meets the eligibility requirements for ongoing appointment as a guardian. 

NWT’s nomination for appointment as a guardian:

1. The represented person clearly expressed her wish for her daughter, NWT to be appointed as her guardian.  The represented person believed that her daughter understood her best and would make decisions that reflected her wishes more highly than the present guardian or an independent guardian.  The Board was satisfied that NWT met the suitability requirements of being consistent with the represented person’s wishes, being compatible with her and available and accessible to fulfill the role of a guardian. 

1. However, the Board had serious reservations as to whether the appointment of NWT as the represented person’s guardian would preserve existing family relationships or undermine them.  The Board was impressed that NWT and the represented person are very close and their relationship is one of mutual love and affection. 

2. A fundamental decision that a guardian must make very soon relates to the represented person’s accommodation.  The represented person is adamant that she wishes to return to her home and live independently.  The care team suggests that is impractical and unsafe.  A guardian will have to be the arbiter of that highly emotive issue. The Board was concerned that the previous appointment of a family member as guardian had bred resentment in family relationships.  The Board considered that the best means by which to preserve this very important relationship between mother and daughter might be not to appoint NWT as guardian. 

3. Additionally, when questioned about how she would conduct herself in the role of a guardian, NWT repeated DNS’s error of over-promoting family consultation in decision making about the represented person. A guardian’s role is not to lead a committee of decision makers but to make an independent decision in line with the principles in section 6 of the Act. From observations at the hearing, the family members are opinionated and formidable in their views about the represented person but they do not agree on all things. Consensus would be very hard to achieve and decision making by majority would also be in error as the represented person’s voice can so easily get lost in that throng. The Board was concerned that this misunderstanding of the role of a guardian may be perpetuated with the appointment of NWT.

1. The Board does not consider that NWT meets the eligibility requirements for appointment as a guardian. 

Nomination of the Public Guardian for appointment as a guardian:

1. The Board considered that, while appointment of the Public Guardian would not reflect the represented person’s wishes, that appointment would best meet the other requirements in the Act. The Public Guardian has no conflict or investment in the views of other family members and can consult with them at arm’s length if necessary. The Board is satisfied that the appointment of the Public Guardian best reflects the eligibility criteria in section 21 and the principles in section 6 of the Act.

Eligibility for appointment as an administrator:

1. When assessing a nominee for administrator, the Board can appoint a deemed administrator such as the Public Trustee or, if assessing an individual who consents to appointment, it must take into account:

   (i) whether the person will act in the best interests of the represented person; and
   (ii) the person is not in a position where his or her interests conflict or may conflict with the interests of the represented person; and
   (iii) the person is a suitable person to act as the administrator of the estate of the represented person; and
   (iv) the person has sufficient expertise to administer the estate.

In determining whether a person is suitable to act as the administrator of the estate 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 compatibility of the person proposed as administrator with the represented person and with his or her guardian, if any.[2]

DNS’s nomination for continuing appointment as an administrator:

[2] Section 54 Guardianship and Administration Act 1995

1. As expressed above in paragraphs 8 to 12, because her appointment would not reflect the represented person’s wishes and because of their incompatibility, the Board does not consider that DNS is suitable to act as administrator of the represented person’s estate.   For reasons also expressed above, the Board considers that DNS may operate from a position of a conflict of interests in elevating the views of family members when making substitute decisions on the represented person’s behalf, the results of which may not be in the represented person’s best interests. 

NWT nomination for appointment as an administrator:

1. As noted above, NWT’s nomination for appointment as administrator had the advantage of reflecting the represented person’s wishes and compatibility between the represented person and the proposed administrator. 

1. One of the tasks of an administrator will be to assess whether a conditional contract for sale of the represented person’s property at XXXX is appropriate or whether it can be revoked in accordance with the represented person’s wishes.  NWT indicated that she had not dealt with real estate before and has no experience with negotiating the revocation of a real estate contract. 

2. The Board considered that the immediate tasks of an administrator in this case may be quite complex and therefore NWT lacked sufficient expertise in real estate and contract matters to undertake the necessary transactions or make the necessary decisions. 

Nomination of the Public Trustee for appointment as an administrator:

1. Section 54(1) of the Act deems the Public Trustee to be an approved administrator without the need to prove their eligibility. The Board is satisfied that this is an appropriate circumstance for the appointment of the Public Trustee as the administrator.

Amendment to the terms of the guardianship order:

1. During the course of the hearing, it was clear to the Board that the full guardianship order was unduly restrictive and it has operated to unnecessarily limit the represented person’s freedom of decision and action.  For instance, the care facility where she lives has relied upon the authority of the guardian to grant or restrict leave from that facility when there remains no medical or other reason why she cannot decide such matters independently.  Parties at the hearing agreed that the only matter for which the represented person is in need of a guardian is to decide where she lives temporarily or permanently.  Although an amendment to the terms of the order is beyond the scope of the current application for review, the Board considered it appropriate to limit the guardianship order to a less restrictive alternative and there was no opposition to this course. 

Conclusion:

After hearing a review of a guardianship and administration order made on 30 August 2012 in respect of KNWT (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 her estate, and her person and circumstances; and

•is in need of a limited guardian and an administrator;

THE BOARD ORDERS

1. That The Public Trustee be appointed as the represented person’s administrator.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

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

4. That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live either permanently or temporarily.

5. That the order remains in effect to 5 December 2016.

Anita Smith  Lindi Wall  Carolyn Wallace
PRESIDENT  MEMBER  MEMBER

Request for statement of reasons received:  17 December 2013
Statement of reasons delivered: 18 December 2013